Opinion
05 Civ. 2868 (JSR)(KNF).
May 12, 2006
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On March 14, 2005, Dan Shah ("Shah") brought this action ("Shah II") against the Consolidated Edison Corporation ("Con Ed"), his former employer, alleging violations of Title VII of the 1991 and 1964 Civil Rights Acts, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), New York State Human Rights Law, New York Executive Law § 296 et seq. ("NYSHRL"), and New York City Human Rights Law, New York City Administrative Code § 8-502 ("NYCHRL"). In April 2004, Shah brought an action against Con Ed, alleging violations of the aforementioned federal, state and municipal laws, with the exception of Title VII. Shah v. Consolidated Edison Corp., No. 04 Civ. 2880 (JSR) (S.D.N.Y. filed April 14, 2004) ("Shah I").
Before the Court is a motion by the defendant to dismiss the plaintiff's complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, based upon the doctrines of collateral estoppel and res judicata. The plaintiff opposes the defendant's motion to dismiss. It is addressed below.
II. BACKGROUND
Shah I
As noted above, on April 14, 2004, the plaintiff commenced Shah I against Con Ed, alleging violations of 42 U.S.C. § 1981, as well as state and municipal human rights laws. In that action, Shah alleged that he was demoted, denied promotions and refused training opportunities in retaliation for his involvement in his co-worker's, David Perez ("Perez"), civil action against Con Ed for unlawful discrimination. Shah also alleged that he was retaliated against by Con Ed because he filed a complaint with Con Ed's internal Equal Employment Opportunity ("EEO") representative, alleging racial discrimination in the workplace. Furthermore, Shah alleged that, after he testified about Con Ed's discriminatory practices at a deposition held in connection with Perez's lawsuit, he received a severe form of professional discipline at Con Ed: a Performance Improvement Notification ("PIN").
In addition to his retaliation claim, Shah's complaint included a hostile work environment claim. Through that claim, Shah alleged that the defendant subjected him and other employees to racially offensive remarks and conduct at their workplace, and ignored complaints of discrimination made by employees to management officials.
On May 7, 2004, shortly after commencing Shah I, the plaintiff took advantage of the defendant's paid sick leave benefit and absented himself from work. On October 7, 2004, Con Ed notified Shah that his ability to take advantage of the sick leave benefit would expire on November 20, 2004. On the advice of his doctor, Shah did not return to work. Thereafter. Con Ed terminated Shah's employment because he had exhausted his sick leave benefit.
On November 22, 2004, during a conference with the court, the plaintiff moved for a temporary restraining order to prevent the defendant from terminating his employment or, alternatively, to have the plaintiff's employment reinstated, if he had already been dismissed. At that time, Shah alleged that the termination of his employment with the defendant was "just another step in the retaliation that is the gist of the complaint." In response to Shah's request, the court granted him an opportunity to take an additional deposition and to make new document requests to obtain information pertaining to Con Ed's sick leave benefit policy. The court explained that Shah would be permitted to obtain additional information through discovery if he could demonstrate to the court that some basis existed for adding a new retaliation claim to his complaint or for enhancing the claim that had been pleaded previously. Thereafter, Shah requested the opportunity to obtain additional information through discovery. However, in an order dated December 20, 2004, the court denied the request. The court found that the plaintiff's request was "overbroad" and was a "classic fishing expedition."
On December 17, 2004, after receiving a "Right to Sue" letter from the Equal Employment Opportunity Commission ("EEOC"), Shah moved to amend his complaint to: (i) assert that the defendant "negligently maintained" a hostile work environment in violation of Title VII; and (ii) allege that the defendant's termination of his employment was additional evidence supporting his retaliation claim. In a memorandum order dated March 14, 2005, the court denied the motion because: (a) the pretrial discovery phase of the litigation had concluded; (b) summary judgment motion practice was proceeding; and (c) the trial of the action was imminent.
Shah filed a charge of discrimination with the EEOC in July 2004.
After considering the defendant's motion for summary judgment, the court dismissed all the plaintiff's claims. With respect to the plaintiff's retaliation claim, the court noted that Shah had failed to carry his burden of rebutting the defendant's showing that its actions did not constitute unlawful discrimination. Specifically, the court found that there was no causal connection between the retaliatory action the defendant allegedly had taken against the plaintiff for participating in the two protected activities: (1) filing a complaint with Con Ed's internal EEO representative; and (2) testifying at the deposition proceeding held in connection with Perez's discrimination lawsuit.
In addition, the court found that "the plaintiff failed to adduce admissible evidence" respecting his hostile work environment claim, and that the evidence offered by Shah fell "woefully short of the level of evidence that would warrant any reasonable juror in inferring the kind of hostile climate necessary to support Plaintiff's legal claim." Shah v. Consolidated Edison Corp., No. 04 Civ. 2880, 2005 WL 612713, at *3 (S.D.N.Y. Mar. 15, 2005).
Shah II
On March 14, 2005, the plaintiff filed the instant action. Shah alleged in his complaint that he was retaliated against by the defendant, as evidenced by Con Ed's termination of his employment in November 2004, because he: (a) complained of racial discrimination at his workplace; and (b) he was willing to testify about the defendant's alleged unlawful discriminatory conduct. Shah brought his retaliatory termination claim under Title VII, § 1981 and the applicable provisions of NYSHRL and NYCHRL. In addition, based upon the same facts set forth in the Shah I complaint, the plaintiff alleged, in the instant complaint, that he was subjected to a hostile work environment. Shah brought his hostile work environment claim under Title VII, § 1981 and the applicable provisions of NYSHRL and NYCHRL. Furthermore, Shah claimed, in the instant complaint, that Con Ed "negligently maintained a racially hostile environment." Shah made this claim pursuant to Title VII.
III. DISCUSSION
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Woodford v. Cmty. Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). Furthermore, the court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken.See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits."Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
"[I]t is well settled that a court may dismiss a claim on res judicata or collateral estoppel grounds on a Rule 12(b)(6) motion." Sassower v. Abrams, 833 F.Supp. 253, 264 n. 18 (S.D.N.Y. 1993). When a motion to dismiss is premised on the doctrines of res judicata and/or collateral estoppel, a court is permitted to take judicial notice of and consider the complaints and the record generated in both actions without having to convert the motion to dismiss into a summary judgment motion. See Scherer v. Equitable Life Assurance Society of U.S., No. 01 Civ. 10193, 2004 WL 2101932, at *6 (S.D.N.Y. Sept. 21, 2004). "[C]ourts routinely take judicial notice of documents filed in other courts, again not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991). The Court has determined to take judicial notice of the complaint and the record generated in Shah I.
I. Res Judicata
"Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424) (internal quotation marks omitted).
"Whether or not the first judgment will have preclusive effect depends in part on whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether facts essential to the second were present in the first." Prime Management Co., Inc. v. Steinegger, 904 F.2d 811, 816 (2d Cir. 1990). "To ascertain whether two actions spring from the same 'transaction' or 'claim,' we look to whether the underlying facts are 'related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations." Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (citation omitted). New legal theories do not amount to a new claim so as to defeat the doctrine of res judicata. See e.g. id., at 110 ("[A] plaintiff cannot avoid the effects of res judicata by 'splitting' his claim into various suits, based on different legal theories with different evidence 'necessary' to each suit") (citation omitted).
"To prove the affirmative defense [of res judicata] a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 285 (2d Cir. 2000).
II. Collateral Estoppel
Collateral estoppel, or issue preclusion, bars "relitigation of an issue of law or fact that was raised, litigated, and actually decided by a judgment in a prior proceeding between the parties, if the determination of that issue was essential to the judgment, regardless of whether or not the two proceedings are based on the same claim." National Labor Relations Board v. United Technologies Corp., 706 F.2d 1254, 1260 (2d Cir. 1983). "Collateral estoppel . . . comes into play when the subsequent action is 'upon a different claim or demand.'" Stone v. Williams, 970 F.2d 1043, 1054 (2d Cir. 1992) (quoting United States v. Moser, 266 U.S. 236, 241, 45 S. Ct. 66, 67 (1924). "In such case, 'the inquiry is whether the point or question presented for determination in the subsequent action is the same as that litigated and determined in the original action.'" Id. (quoting Moser, 266 U.S. at 241, 45 S. Ct. at 67).
"For collateral estoppel to bar a party from litigating an issue in a second proceeding, '(1) the issues in both proceedings must be identical, (2) the issue in the prior proceeding must have been actually litigated and actually decided, (3) there must have been a full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.'"See Cameron v. Church, 253 F. Supp. 2d 611, 618 (S.D.N.Y. 2003) (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986).
"In essence, the functional difference between claim preclusion and issue preclusion is that while only the former can operate to prevent litigation of a matter that has never been decided, both prevent relitigation of an issue of fact or law that has already been necessarily decided as part of a valid, final judgment."Stone, 970 F.2d at 1054.
III. Application Res Judicata: Hostile Work Environment
To the extent that the instant hostile work environment claim is brought pursuant to § 1981, NYSHRL and NYCHRL, this claim is barred by res judicata because the identical claim and its supporting facts were asserted by the plaintiff against the defendant in Shah I and the court decided the claim on the merits when it granted the defendant's summary judgment motion. See, e.g., Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 714-15 (2d Cir. 1977) (summary judgment is dismissal on the merits for res judicata purposes).
It is undisputed that the same parties litigating Shah II, litigated Shah I, and that the Shah I court decided the plaintiff's hostile work environment claim, brought pursuant to § 1981, and corresponding state and municipal anti-discrimination laws, on its merits. Therefore, if Shah's Title VII hostile work environment claim: (i) arises from the same transaction or connected series of transactions as gave rise to the § 1981 claim, which was dismissed by the Shah I court; (ii) needs the same evidence to support it as was needed for the § 1981 claim; and (iii) is premised on essential facts that were present in the first action, then the doctrine of res judicata will bar Shah from prosecuting his Title VII hostile work environment claim.See Prime Management, 904 F.2d at 815-816. The Court is mindful that "[i]t is the identity of facts surrounding the occurrence which constitutes the cause of action, not the legal theory" upon which a litigant has chosen to frame a complaint. Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992).
Here, Shah's hostile work environment claim is based on an allegation that the defendant permitted him to be subjected to racially offensive remarks and conduct at his workplace. The facts asserted by the plaintiff in support of his claim are substantively the same as the facts he asserted in Shah I. The only difference between the Shah I and Shah II hostile work environment claims, is that the latter claim has been brought under a legal theory that was not advanced in the prior action. Therefore, the Court finds that the instant hostile work environment claim involves the same transaction, or connected series of transactions, described in Shah I. Absent the presentation of new factual allegations, that demonstrate that the hostile work environment complained of in the case at bar stems from a transaction(s) different from the transaction(s) discussed in Shah I, the plaintiff's assertion of a new legal theory, under which he might be entitled to relief, does not act as a bar to the invocation of the doctrine of res judicata. Id. Therefore, the doctrine of res judicata prevents the plaintiff from asserting a hostile work environment claim in this action. See Monahan, 214 F.3d at 285.
Collateral Estoppel: Hostile Work Environment
In addition to res judicata, the Court finds that the plaintiff's hostile work environment claim is barred by collateral estoppel. In Shah I, the court addressed the plaintiff's § 1981 hostile work environment claim by deciding two issues, as it was required to do: (1) whether Shah's workplace was permeated with discriminatory intimidation sufficiently severe or pervasive to alter the conditions of his work environment; and (2) whether a specific basis existed for imputing the conduct that created the hostile environment to the employer. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000).
A hostile work environment claim made pursuant to Title VII requires a court to analyze and resolve the same two issues.See, e.g., Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (explaining that Title VII standard applies to state and municipal human rights statutes). Although the plaintiff is correct, when he asserts that, pursuant to Title VII, an employer may be held liable due to mere negligence when it is determined that a specific basis exists for imputing the conduct that created the hostile environment to the employer, a court need not reach this issue if an employee plaintiff cannot establish that his or her workplace was permeated with such severe or pervasive discriminatory intimidation that the conditions of the employee's employment and work environment were altered.
In Shah I, the court found that the plaintiff's work environment was not "sufficiently severe or pervasive to alter the conditions of the [Shah's] employment and create an abusive working environment." This factual issue is identical to the central factual issue raised by the plaintiff in his Title VII hostile work environment claim. Since the plaintiff had a full and fair opportunity to litigate this issue in Shah I, and it was decided against him, the doctrine of collateral estoppel prevents Shah from relitigating that same factual issue in the instant action.
Retaliatory Termination: Res Judicata
The defendant maintains that the plaintiff's Title VII retaliatory termination claim should be barred by res judicata because it arises from the same transaction or series of transactions at issue in Shah I. For the reasons that follow, the Court disagrees.
While claim preclusion bars relitigation premised on a transaction(s) that informed a previous judgment, it does not preclude litigation premised on a transaction(s) that occurred after the commencement of the prior lawsuit. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A. 400 F.3d 139, 141 (2d Cir. 2005). "Claims arising subsequent to a prior action need not, and often perhaps could not, have been brought in that prior action; accordingly, they are not barred by res judicata regardless of whether they are premised on facts representing a continuance of the same course of conduct. The crucial date is the date the complaint was filed." Id.
In the instant action, the retaliatory termination alleged by Shah came about after he initiated Shah I. Unlike Shah's § 1981 retaliation claim, which was premised upon allegations that the defendant took an adverse employment action against Shah in retaliation for complaints he made prior to filing Shah I, the plaintiff's retaliation claim in Shah II is based on conduct Shah attributes to the defendant that occurred after Shah I was initiated. Specifically, the plaintiff alleges that the defendant terminated his employment in retaliation for his participation in Shah I, a protected activity. Shah did not have "an obligation to avail [himself] of the opportunity in [his] first action to pursue a remedy for the alleged retaliatory discharge, because [his] retaliatory discharge claim arose entirely out of conduct postdating the filing of [his] first action." Legnani, 400 F.3d at 143.
Drawing all reasonable inferences in favor of the plaintiff, as it must, see Jackson Nat'l Life Ins., supra, the Court finds that the plaintiff has adequately pleaded a new claim for retaliatory termination, based upon new factual allegations that were not at issue in Shah I. These new factual allegations are grounds for an independent claim, arising from a new transaction, unrelated to any transaction that gave rise to the retaliation claim asserted in Shah I. Therefore, dismissal of the retaliatory termination claim, made by the plaintiff in this action, is not warranted.
IV. RECOMMENDATION
For the reasons set forth above, the defendant's motion to dismiss the plaintiff's hostile work environment claim under the doctrines of res judicata and collateral estoppel should be granted. The defendant's motion to dismiss the plaintiff's retaliatory termination claim, brought pursuant to federal, state and municipal anti-discrimination laws, should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, United States District Judge, 500 Pearl St., Room 1240, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).