Gentile-Riaz v. Samo Thraki, LLC

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Gentile-Riaz v. Samo Thraki, LLC

CORIE GENTILE-RIAZ v. SAMO THRAKI, LLC, ET AL.
(AC 47504)
Alvord, Wilson and Sheldon, Js.

Syllabus

The plaintiff appealed from the trial court’s judgment granting the defen-
dants’ motions to dismiss her retaliatory discharge action, which alleged a
violation of the whistleblower statute (§ 31-51m). The plaintiff, while
employed at a pizza restaurant owned by the defendant S Co. and managed by
the defendant L, submitted a complaint to the local health district reporting
unsanitary conditions at the restaurant. The day after a health inspector
visited the restaurant and disclosed that the plaintiff had made the complaint,
the defendants terminated her employment. The plaintiff claimed that the
trial court erred in determining that it lacked subject matter jurisdiction on
the ground that she had failed to exhaust administrative remedies available
through the Department of Labor, as required by § 31-51m (c). Held:

The trial court improperly granted the defendants’ motions to dismiss the
plaintiff’s retaliatory discharge action on the ground that it lacked subject
matter jurisdiction, as the plaintiff’s action focused on her employer’s con-
duct in terminating her employment following her complaint to the health
district, the substance of which related to public health, not occupational
safety or health.

Argued September 9—officially released December 16, 2025

Procedural History

Action to recover damages for the plaintiff’s allegedly
retaliatory discharge from employment, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New London, where the court, Papastavros,
J., granted the named defendant’s motion to dismiss;
thereafter, the court, Spallone, J., granted the defendant
Dimitrios Lenoudias’ motion to dismiss and rendered
a judgment of dismissal, from which the plaintiff
appealed to this court. Reversed; further proceedings.

Theodore W. Heiser, for the appellant (plaintiff)
Peter J. Bartinik, Jr., for the appellees (defendants).
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Opinion

ALVORD, J. The plaintiff, Corie Gentile-Riaz, appeals
from the judgment of the trial court granting the
motions of the defendants, Samo Thraki, LLC, doing
business as Midway Pizza (Midway Pizza), and Dimi-
trios Lenoudias, to dismiss the plaintiff’s complaint
alleging retaliatory discharge in violation of General
Statutes § 31-51m. On appeal, the plaintiff claims that
the court improperly determined that it lacked subject
matter jurisdiction on the ground that she failed to
exhaust administrative remedies. We reverse the judg-
ment of the trial court.
The following facts, as alleged in the plaintiff’s com-
plaint and viewed in the light most favorable to the
plaintiff, and procedural history are relevant to our
review of the plaintiff’s claim on appeal. The plaintiff
commenced the present action in May, 2022, by way of
a single count complaint alleging that her employment
had been terminated in violation of § 31-51m. Specifi-
cally, she alleged that she had been employed by Mid-
way Pizza, with Lenoudias as her direct supervisor,
from on or about February 28, 2019, through the date
of the termination of her employment on April 13, 2022.
The plaintiff alleged that she had ‘‘performed the duties
of her position in a satisfactory manner throughout
her tenure and was not subject to any discipline or
performance issues that would have led to her termina-
tion.’’ She alleged that she ‘‘had witnessed numerous
health code violations throughout her employment with
Midway Pizza and was concerned for the public’s safety.
. . . On or about April 11, 2022, the plaintiff sent a very
detailed email to Stephen Mansfield, Director of Health,
Ledge Light Health District (health district) concerning
Midway Pizza’s numerous health code violations. . . .
Upon information and belief, an investigator from the
health district visited the restaurant on April 12, 2022,
and disclosed that the plaintiff had made the health
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code complaint. . . . Thereafter, on April 13, 2022,
Lenoudias terminated the plaintiff’s employment with
Midway Pizza.’’
The plaintiff alleged that her report to the health
district brought her within the protection of § 31-51m,
and that the defendants retaliated against her by termi-
nating her employment without providing a genuine
reason and in violation of § 31-51m. She alleged that
‘‘[i]t was only after the plaintiff engaged in the protected
activity of raising concerns about health and safety
violations, welfare and compliance with state law that
she was terminated from employment.’’
On February 17, 2023, Midway Pizza filed a motion
to dismiss the plaintiff’s complaint insofar as it set forth
a claim against it on the ground that the court lacked
subject matter jurisdiction over the plaintiff’s claim
because she failed to exhaust administrative remedies
available to her through the Department of Labor. The
motion was accompanied by a memorandum of law
in support, in which Midway Pizza relied on General
Statutes § 31-40q, which requires employers to prohibit
smoking in the workplace, and General Statutes § 31-
379, which prohibits retaliation following reports of
violation of occupational safety and health standards,
in support of its argument that the plaintiff had an
administrative remedy with the Department of Labor.
Midway Pizza argued that the plaintiff’s failure to
exhaust administrative remedies with the Department
of Labor deprived the court of subject matter jurisdic-
tion. Midway Pizza attached to its motion an affidavit
from Lenoudias in which he averred that he was a
member of Samo Thraki, LLC, as well as the manager
of Midway Pizza. He further averred that, to his knowl-
edge, the plaintiff had not filed an administrative claim
with the Department of Labor. Midway Pizza also
attached to the motion to dismiss a copy of the plaintiff’s
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health district complaint.1 The plaintiff filed an opposi-
tion to the motion to dismiss, arguing that, because
1
The plaintiff’s health district complaint stated: ‘‘Hello, I am currently an
employee at Midway Pizza in Groton CT. I am e-mailing you because I am
concerned for people’s health. I have spoken to my employer in regards to
these concerns and I’m afraid my voice has been ignored! There are so
many things at Midway Pizza that are not being done by proper code. I
would prefer this e-mail be anonymous, so that I will NOT lose my job. I
love my job and I love our customers. I just don’t like how things are
being done inappropriately. I have been informed by the owner Dimitrios
Lenoudias (a.k.a. Jimmy) and his brother Angelo Lenoudias that they have
‘FRIENDS THAT WORK INSIDE THE HEALTH DEPARTMENT’ which is
why they seem to get away with NOT FOLLOWING PROPER CODE! They
have said that this person/persons have made it possible for them to remain
up and running without consequence by TURNING A BLIND EYE TO THEIR
UNETHICAL PROCEDURES. There are many things to report so I will list
them one at a time! There is NOT ONE person currently at Midway Pizza
who is a certified safety food operator. There is a certificate on the wall
with a woman by the name of Hope Whitman on it. However, Hope Whitman
no longer works at Midway Pizza. In fact she has not worked there since
two maybe three weeks after I started and I started there three years ago
now. She is currently still on payroll to appear as though she still works
there. However, she is on the payroll due to helping the owner with his
bookkeeping. Not because she physically works behind the counter or even
with the food. There is NO GREASE TRAP in the kitchen at all. They had
it removed because it smelled terrible and it kept clogging, so now all the
grease runs right into the sewer. There is NO HAND WASHING SINK in the
front for us to be able to wash our hands. They had a sink in the front of
the store behind the counter, but it was not connected to a water inlet nor
did it have a drain connection. It was just a sink placed into the counter to
appear as though it had proper running water with a bucket placed under-
neath to catch any liquid that anyone had poured down the drain. We have
gloves, but we are told to only wear them when there is a customer in the
building, when we are wearing the gloves they prefer that instead of changing
them we use a rag to wipe/wash them. I get yelled at frequently because I
refuse to use the same gloves over and over. I have actually gotten screamed
at and lectured about how expensive one case of gloves are! I respond with,
it’s a small price to pay to see to it that no one gets ill. There is a RAT/
MOUSE PROBLEM! They have traps placed everywhere in the store. At
night you can hear them running across the ceiling tiles due to having a
drop ceiling. I have found oil bottles eaten into and instead of them throwing
the oil away, they saved it by pouring it into another receptacle. I have
found bags of spaghetti eaten into. Once more instead of throwing the
spaghetti away, they just throw out the broken pieces or eaten pieces. Only
once have they thrown the spaghetti away and that was only because I kept
explaining how mice/rats carry diseases and GOD forbid if someone were
to get sick. They have caught mice and have also caught rats. Whatever
they catch they kill by either stepping on them or drowning them. Both the
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her complaint was made to a municipal health district,
rather than the state or federal occupational safety and
health agencies, there were no administrative remedies
available to her and the appropriate mechanism to bring
owner and his brother both smoke cigarettes which is fine, but NOT WHILE
THEY’RE WORKING. The owner sits in one of the booths smoking cigarette
after cigarette with a little cup of water just in case a customer walks in
so that he can extinguish his cigarette. His brother also known as our ‘‘cook’’
SMOKES IN THE KITCHEN. Most days there are cigarette butts sitting on
the counter tops. I have found ashes on the counters and I have even found
cigarette ashes on one of the pizza’s I have pulled out of the walk in to
sauce. There is a spot on the counter top next to the coffee machine to the
left where they have taped a piece of foil to the counter so that if a customer
walks in they can set the cigarette on the counter without burning the
counter top and quickly take care of the customer. Inside of the dish bucket
under the counter is a can filled with water to throw the lit cigarette butts
in to also extinguish if the customers walk in. NO ONE WASHES THEIR
HANDS AFTER SMOKING with the exception of Abigail Piktelis one of my
co-workers. In the storage room there are coffee cups and souffle cups with
water and cigarette butts in them cause the storage room is also used as a
smoking area when the owners friends come through. I have witnessed the
owner with his hand down his pants scratching his butt and balls not wash
his hands then go to the front to greet customers and make their food! We
were marked points for the shelves in the storage room not having stain/
polyurethane and for the flooring and yet none of these things have even
started to be corrected. There is NO PROPER MATTS for the floors in which
we stand for long periods of time. I was informed on 3/11/22 that I was no
longer allowed to change the bain [marie] containers nightly. I am only
allowed to change them once a week now, which is disgusting due to all
the grease that accumulates in them on a daily basis. At times they put
frozen items on top of the oven to defrost instead of in the walk in because
someone forgot to take something out the night before. The owner’s wife
has a habit of eating the provolone cheese which wouldn’t be a problem if
she didn’t take a bite then throw the remainder of the slice back into the
container where the unused provolone sits. Nothing is ever dated or labeled
to know how old it is. I continue to throw things away that either feel slimy,
look discolored, or have a foul odor. I have witnessed the owner cut RAW
CHICKEN, then use that same knife to cut cooked chicken. The owners
brother drinks on the job and in doing so I believe that some foods don’t
get cooked to the proper temperatures. Which I believe is why he microwaves
all meats cooked in the fryer. I could continue on with more things wrong
with the way that this business is ran, however I believe I’ve said more than
enough at this point. As you can see from the reasons listed above there
are serious safety health issues at stake here that should definitely be looked
into and addressed. There are also issues of sexual harassment and hostile
work environment which will be addressed to the proper channels. Thank
you for your time and understanding.’’
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her whistleblower claim was pursuant to § 31-51m. The
plaintiff did not attach any documents to her opposition
to the motion to dismiss in an attempt to dispute the
proof on which Midway Pizza relied in the attachments
to its motion to dismiss.
The court, Papastavros, J., heard oral argument on
the motion to dismiss on August 3, 2023. On August 11,
2023, the court issued its memorandum of decision, in
which it concluded that the plaintiff had administrative
remedies available through the Department of Labor
and, therefore, she was required to exhaust those reme-
dies prior to initiating suit. The court concluded that,
because the plaintiff had failed to exhaust her adminis-
trative remedies, the court lacked subject matter juris-
diction and granted Midway Pizza’s motion to dismiss
the complaint against it. The plaintiff filed a motion to
reargue, and Midway Pizza filed an opposition thereto.
On October 3, 2023, the court denied the motion to
reargue. The plaintiff then filed a notice of intent to
appeal from that decision pursuant to Practice Book
§ 61-5.
On October 18, 2023, Lenoudias filed a motion to
dismiss the plaintiff’s complaint against him and a mem-
orandum of law in support of the motion. Therein, he
argued that the complaint should be dismissed for the
same reasons as those expressed in the court’s memo-
randum of decision granting Midway Pizza’s motion to
dismiss. He further argued that the law of the case
doctrine should apply. On March 15, 2024, the court,
Spallone, J., granted Lenoudias’ motion to dismiss, stat-
ing that it adopted Judge Papastavros’ analysis and that
dismissal was consistent with the law of the case doc-
trine. This appeal followed.
‘‘We begin our discussion by setting forth the well
settled standard of review that governs an appeal from
a judgment granting a motion to dismiss on the ground
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of a lack of subject matter jurisdiction. A motion to
dismiss properly attacks the jurisdiction of the court,
essentially asserting that the plaintiff cannot as a matter
of law and fact state a cause of action that should be
heard by the court. . . . A court deciding a motion to
dismiss must determine not the merits of the claim or
even its legal sufficiency, but rather, whether the claim
is one that the court has jurisdiction to hear and decide.
. . . [B]ecause [a] determination regarding a trial
court’s subject matter jurisdiction is a question of law,
our review is plenary.’’ (Emphasis in original; internal
quotation marks omitted.) Godbout v. Attanasio, 199
Conn. App. 88, 95, 234 A.3d 1031 (2020). ‘‘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 juris-
diction should be indulged.’’ (Internal quotation marks
omitted.) Graham v. Friedlander, 334 Conn. 564, 571,
223 A.3d 796 (2020).
‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to [Practice
Book § 10-30] may encounter different situations,
depending on the status of the record in the case. . . .
[If] a trial court decides a jurisdictional question raised
by a pretrial motion to dismiss on the basis of the
complaint alone, 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. . . .
‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . other types of
undisputed evidence . . . and/or public records of
which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
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these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein.
. . .

’’Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . In that situation, [a]n evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding based on memo-
randa and documents submitted by the parties.’’ (Inter-
nal quotation marks omitted.) Godbout v. Attanasio,
supra, 199 Conn. App. 96–97. In the present case, the
factual allegations set forth in the complaint were sup-
plemented by undisputed facts contained in documents,
including the plaintiff’s health district complaint,
attached to Midway Pizza’s memorandum of law in sup-
port of its motion to dismiss.

On appeal, the plaintiff claims that the court improp-
erly concluded that it lacked subject matter jurisdiction
to adjudicate the merits of her retaliatory discharge
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action because she failed to exhaust administrative rem-
edies before filing her action in Superior Court. We
agree with the plaintiff.
We first set forth relevant legal principles. Connecti-
cut’s whistleblower statute, § 31-51m, protects an
‘‘employee from retaliatory discharge when the employee
has complained, in good faith, about a suspected viola-
tion of a state or federal law or regulation.’’ (Footnote
omitted.) Arnone v. Enfield, 79 Conn. App. 501, 506–
507, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d
804 (2003). Section 31-51m (b) provides in relevant part:
‘‘No employer shall discharge, discipline or otherwise
penalize any employee because . . . the employee
. . . reports, verbally or in writing, a violation or a
suspected violation of any state or federal law or regula-
tion or any municipal ordinance or regulation to a public
body . . . .’’ Subsection (c) provides in relevant part:
‘‘Any employee who is discharged, disciplined or other-
wise penalized by his employer in violation of the provi-
sions of subsection (b) may, after exhausting all avail-
able administrative remedies, bring a civil action, within
ninety days of the date of the final administrative deter-
mination or within ninety days of such violation, which-
ever is later, in the superior court for the judicial district
where the violation is alleged to have occurred or where
the employer has its principal office, for the reinstate-
ment of his previous job, payment of back wages and
reestablishment of employee benefits to which he
would have otherwise been entitled if such violation
had not occurred. An employee’s recovery from any
such action shall be limited to such items, provided
the court may allow to the prevailing party his costs,
together with reasonable attorney’s fees to be taxed by
the court. . . .’’ General Statutes § 31-51m (c).
In concluding that the plaintiff had failed to exhaust
available administrative remedies, the trial court looked
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to the federal Occupational Safety and Health Act (fed-
eral act), which was designed ‘‘to assure so far as possi-
ble every working man and woman in the Nation safe
and healthful working conditions and to preserve our
human resources . . . .’’ 29 U.S.C. § 651 (b) (2018).
Title 29 of the United States Code, § 660 (c) (1), prohib-
its the discharge or discrimination against an employee
for exercising their rights under the federal act. Section
660 (c) provides in relevant part: ‘‘No person shall dis-
charge or in any manner discriminate against any
employee because such employee has filed any com-
plaint or instituted or caused to be instituted any pro-
ceeding under or related to this chapter . . . .’’
(Emphasis added.) 29 U.S.C. § 660 (c) (1) (2018). Sub-
section (c) (2) of 29 U.S.C. § 660 provides a statutory
administrative remedy for employees who allege that
they were discharged in retaliation for reporting viola-
tions of the federal act. Pursuant to 29 U.S.C. § 660 (c)
(2), an employee who believes that he was discharged
in violation of 29 U.S.C. § 660 (c) (1) may file a complaint
with the Secretary of Labor within thirty days following
the discharge. If the Secretary of Labor determines that
the employee was discharged in retaliation for filing a
complaint under or related to the federal act, the
employee may pursue an action against the employer
in federal court. 29 U.S.C. § 660 (c) (2) (2018). The court
possesses jurisdiction to ‘‘restrain violations of [29
U.S.C. § 660 (c) (1)] and order all appropriate relief
including rehiring or reinstatement of the employee to
his former position with back pay.’’ 29 U.S.C. § 660 (c)
(2) (2018).
Section 31-51m requires that a party exhaust all avail-
able administrative remedies before pursuing a civil
action. ‘‘When a plaintiff has available to him adminis-
trative remedies that could have afforded him meaning-
ful relief . . . [h]is failure to [properly pursue those
remedies] forecloses his access to judicial relief,
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because it deprive[s] the trial court of jurisdiction to
hear his complaint. . . . In addition, when a plaintiff
fail[s] to follow the administrative route prescribed by
the legislature for his claim . . . the plaintiff fails to
exhaust his or her administrative remedies.’’ (Citations
omitted; internal quotation marks omitted.) Burnham
v. Karl & Gelb, P.C., 252 Conn. 153, 168–69, 745 A.2d
178 (2000); see also Campbell v. Plymouth, 74 Conn.
App. 67, 82, 811 A.2d 243 (2002) (‘‘Administrative adjudi-
cations can provide an opportunity for successful reso-
lution of disputes without the time and costs associated
with litigation. They also serve to reduce the burden
on judicial resources. It therefore makes sense to toll
a statute of limitation to allow parties to attempt to
resolve their disputes first by administrative means. A
valid administrative remedy, however, must provide for
‘meaningful relief,’ otherwise litigation is merely post-
poned.’’).
Because the federal act provides statutory adminis-
trative remedies to employees raising claims either
‘‘under’’ or ‘‘related to’’ that act; see 29 U.S.C. § 660 (c)
(1) (2018); we must consider the nature of the plaintiff’s
health district complaint. First, the plaintiff’s complaint
was not made under the act, in that it was not filed
with the Occupational Safety and Health Administration
(OSHA), but rather with the municipal health district.
As to whether the plaintiff’s claim was related to the
federal act, we consider the federal regulations. Title 29
of the 2024 edition of the Code of Federal Regulations,
§ 1977.1, provides in relevant part that ‘‘[t]he Occupa-
tional Safety and Health Act of 1970 . . . is a Federal
statute of general application designed to regulate
employment conditions relating to occupational safety
and health and to achieve safer and healthier work-
places throughout the Nation.’’
Title 29 of the 2024 edition of the Code of Federal
Regulations, § 1977.9, provides guidance regarding
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complaints that are considered ‘‘related to’’ the federal
act. Specifically, it provides: ‘‘(a) . . . The range of
complaints ‘related to’ the Act is commensurate with
the broad remedial purposes of this legislation and the
sweeping scope of its application, which entails the full
extent of the commerce power. . . . (b) Complaints
registered with other Federal agencies which have the
authority to regulate or investigate occupational safety
and health conditions are complaints ‘related to’ this
Act. Likewise, complaints made to State or local agen-
cies regarding occupational safety and health condi-
tions would be ‘related to’ the Act. Such complaints,
however, must relate to conditions at the workplace,
as distinguished from complaints touching only upon
general public safety and health. . . .’’ (Emphasis
added.) 29 C.F.R. § 1977.9 (a) and (b) (2024).
With this statutory and regulatory background in
mind, we turn to the plaintiff’s health district complaint.
The plaintiff began her complaint by stating that she
was ‘‘concerned for people’s health.’’ Her complaints
included: (1) lack of a certified safety food operator;
(2) no grease trap causing grease to run into the sewer;
(3) no handwashing sink and direction to reuse gloves,
which the plaintiff stated was a concern of hers to ‘‘see
to it that no one gets ill’’; (4) rats and/or mice have
eaten into oil bottles and the oil was not thrown away
but rather poured into another receptacle; (5) rats and/
or mice have eaten into spaghetti and only the broken
pieces were thrown away, however, ‘‘[o]nly once have
they thrown the spaghetti away and that was only
because [the plaintiff] kept explaining how mice/rats
carry diseases and GOD forbid if someone were to get
sick’’; (6) smoking cigarettes in the restaurant and
kitchen and that the plaintiff has ‘‘found ashes on the
counters and . . . even found cigarette ashes on one
of the pizzas [she] pulled out of the walk in to sauce’’;
(7) no one washes their hands after smoking with the
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Gentile-Riaz v. Samo Thraki, LLC

exception of one coworker; (8) she had witnessed ‘‘the
owner with his hand down his pants scratching his butt
and balls not wash his hands then go to the front to
greet customers and make their food’’; (9) no proper
mats for the floors where the plaintiff and others stand
for long periods of time; (10) only being allowed to
change the bain-marie containers weekly rather than
nightly; (11) improper defrosting of foods on top of the
oven rather than in the refrigerator; (12) the owner’s
wife taking a bite from a slice of cheese and returning
the rest of the slice to the container; (13) no food is
dated or labeled, and the plaintiff continues to throw
things away that ‘‘either feel slimy, look discolored, or
have a foul odor’’; (14) the owner has cut raw chicken
and then cooked chicken with the same knife; and (15)
the owner’s brother ‘‘drinks on the job and [the plaintiff
believes] that some foods don’t get cooked to the proper
temperatures. Which [she] believes is why he micro-
waves all meats cooked in the fryer.’’ According to the
plaintiff, after an investigator from the health district
visited the restaurant, the plaintiff’s employment was
terminated.

We conclude that the plaintiff was not required to
exhaust administrative remedies prior to filing her retal-
iatory discharge action arising out of the termination of
her employment following her health district complaint.
First, the plaintiff’s stated concern in her health district
complaint was public health. Cf. Su v. Kwiat Eye &
Laser Surgery, PLLC, Docket No. 1:22-cv-00264 (AMN/
DJS), 2024 WL 3665768, *4 (N.D.N.Y. August 6, 2024)
(rejecting attempt to frame complaint as concerning
patient well-being where plaintiff’s specific concern
about patients’ health was that they would spread their
illness in workplace to her or other employees). With
that focus, the plaintiff understandably filed her com-
plaint with the health district rather than with OSHA.
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Second, the plaintiff’s specific allegations overwhelm-
ingly focused on improper food storage, preparation,
and safety. The plaintiff repeatedly stated her concern
that customers would get sick from the improper food
safety and handwashing procedures. This focus on the
customers included her complaints about smoking,
which related to food safety in that the plaintiff alleged
that she had seen ashes on customers’ food.2 Nowhere
2
The defendants contend that the plaintiff’s references in her health dis-
trict complaint to smoking in the workplace alleged violations of General
Statutes § 31-40q (b), which requires that ‘‘[e]ach employer shall prohibit
smoking . . . in any area of any business facility under said employer’s
control.’’ The defendants argue that the plaintiff had a statutory administra-
tive remedy for retaliation following claims of violations of § 31-40q under
Connecticut’s Occupational Safety and Health Act, General Statutes § 31-
367 et seq.
General Statutes § 31-379 provides in relevant part: ‘‘(a) No person shall
discharge, discipline, penalize or in any manner discriminate against any
employee . . . because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this chap-
ter . . . .
‘‘(b) Any employee who believes that such employee has been discharged,
disciplined, penalized or otherwise discriminated against by any person in
violation of subsection (a) of this section may, not later than one hundred
eighty days after such violation occurs, file a complaint with the commis-
sioner alleging such violation. Upon receipt of such complaint the commis-
sioner shall hold a hearing in accordance with the provisions of chapter 54.
‘‘(c) The commissioner may award an aggrieved employee all appropriate
relief, including rehiring or reinstatement of the employee to the employee’s
former position, back pay and reestablishment of any employee benefits to
which the employee would otherwise have been eligible if such violation
had not occurred. The commissioner shall award a prevailing employee
such employee’s costs, together with reasonable attorneys’ fees to be deter-
mined by the commissioner.
‘‘(d) Any party aggrieved by the commissioner’s decision under subsection
(c) of this section may appeal the decision to the Superior Court in accor-
dance with the provisions of chapter 54.’’
The plaintiff responds: ‘‘(1) the plaintiff did not exercise any rights under
§ 31-40q, because her complaints concerning smoking were specifically in
reference to its impact on food preparation and service; (2) § 31-40q does
not provide any administrative remedies nor does it provide a private right
of action to an employee; (3) the only enforcement provision applying to § 31-
40q is [General Statutes] § 31-50, which only indicates that the ‘commissioner
shall enforce the provisions’ but does not provide a private remedy; and (4)
§ 31-379 only applies to chapter 571 of title 31, which is the Occupational
Safety and Health Act, but [§] 31-40q is in a separate chapter.’’
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in the plaintiff’s complaint does she reference a concern
regarding her own health. Thus, we conclude that the
plaintiff’s complaints ‘‘touch[ed] only upon general pub-
lic safety and health’’ rather than conditions at the work-
place. See 29 C.F.R. § 1977.9 (2024).
We reach the same conclusion upon examination of
the plaintiff’s complaint filed in the Superior Court. The
plaintiff captioned her claim as alleging a violation of
§ 31-51m and asserted therein that the defendants retali-
ated against her following her report to the health dis-
trict after she had ‘‘witnessed numerous health code
violations throughout her employment . . . and was
concerned for the public’s safety.’’ Nowhere in the plain-
tiff’s complaint does she reference occupational safety
or health.
The defendants’ focus is on one allegation in the
plaintiff’s health district complaint, namely, the floor
mats in the restaurant. We acknowledge that the floor
mats could relate to employee safety, however, we
decline to focus exclusively on that one allegation
where the substance of the complaint as a whole relates
to public health. The gravamen of the plaintiff’s health
district complaint was that conditions and practices in
the restaurant are a threat to public health, and the
plaintiff’s Superior Court complaint alleges that the
defendants retaliated against the plaintiff on the basis
of her report. Cf. Metropolitan District v. Commission
on Human Rights & Opportunities, 180 Conn. App.
478, 512, 184 A.3d 287 (because gravamen of plaintiff’s
complaint was that defendant acted in contravention
of statutory and regulatory obligations, plaintiff could
not bypass exhaustion requirement by including variety
of requests in prayer for relief, noting that analysis
We agree with the plaintiff that her references to smoking in her health
district complaint did not necessitate exhaustion of administrative remedies.
The plaintiff made no reference to her own health but rather complained
about smoking in the context of food preparation and service.
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considers factual predicate for claims), cert. denied,
328 Conn. 937, 184 A.3d 267 (2018).
We note that an identified primary policy underlying
the exhaustion doctrine would not be served by requir-
ing the plaintiff to pursue her claim through OSHA. Our
Supreme Court has explained that ‘‘a primary purpose
of the [exhaustion] doctrine is to foster an orderly pro-
cess of administrative adjudication and judicial review,
offering a reviewing court the benefit of the agency’s
findings and conclusions. It relieves courts of the bur-
den of prematurely deciding questions that, entrusted
to an agency, may receive a satisfactory administrative
disposition and avoid the need for judicial review. . . .
Moreover, the exhaustion doctrine recognizes the
notion, grounded in deference to [the legislature’s] dele-
gation of authority to coordinate branches of [g]overn-
ment, that agencies, not the courts, ought to have pri-
mary responsibility for the programs that [the legislature]
has charged them to administer. . . . Therefore,
exhaustion of remedies serves dual functions: it pro-
tects the courts from becoming unnecessarily burdened
with administrative appeals and it ensures the integrity
of the agency’s role in administering its statutory
responsibilities.’’ (Internal quotation marks omitted.)
Financial Consulting, LLC v. Commissioner of Ins.,
315 Conn. 196, 212–13, 105 A.3d 210 (2014). Similarly,
our appellate courts have stated that ‘‘one purpose
underlying the exhaustion doctrine is that judicial
review may be hindered by the failure of the litigant to
allow the agency to make a factual record, or to exercise
discretion or apply its expertise.’’ (Internal quotation
marks omitted.) Fitzgerald v. Bridgeport, 187 Conn.
App. 301, 318, 202 A.3d 385 (2019); see also Stepney,
LLC v. Fairfield, 263 Conn. 558, 568, 821 A.2d 725 (2003)
(policies underlying exhaustion doctrine were best
served by requiring plaintiff to take claim before
agency’s commissioner, where issue involved fact
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bound inquiry that commissioner was uniquely qualified
to undertake).
In the present case, we are not convinced that OSHA
is ‘‘uniquely qualified to undertake’’ the inquiry into
whether the plaintiff’s employment improperly was ter-
minated based on her complaint to the health district.
This retaliatory discharge action will not focus on occu-
pational safety and health but, rather, on an employer’s
conduct in terminating an employee following a health
district complaint. Accordingly, we conclude that per-
mitting the present action to proceed would not violate
the exhaustion doctrine or its policy underpinnings.
Because there were no administrative remedies avail-
able to the plaintiff in connection with her health district
complaint, the court improperly concluded that the
plaintiff failed to comply with § 31-51m by not
exhausting administrative remedies prior to commenc-
ing the present action. Accordingly, the court improp-
erly granted the defendants’ motions to dismiss.
The judgment is reversed and the case is remanded
with direction to deny the defendants’ motions to dis-
miss and for further proceedings according to law.
In this opinion the other judges concurred.