Shoup v. Tucson Unified School District

Filing 24

ORDER granting 11 Motion to Dismiss for Failure to State a Claim. This action is DISMISSED. All parties are to bear their own attorney fees and costs. This action is closed. The Clerk's Office should enter a Final Judgment that conforms with this Order. Signed by Senior Judge David C Bury on 8/10/17. (See attached PDF for complete information.) (KAH)

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Sonia J. Shoup,
Plaintiff,
v.

Tucson Unified School District,
Defendant.

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CV-16-573-TUC-DCB

FINAL ORDER

This matter comes before the Court on Defendant=s Motion to
Dismiss based on the doctrine of res judicata.

The parties conducted

oral argument before the Court on August 2, 2017 and the Court took
the matter under advisement.

The Court now rules.
SUMMARY

It is not contested that Plaintiff is a person with a disability,
a condition that required accommodation to perform the essential
functions of the position. Nor is it disputed that during Plaintiff’s
17 years of employment as an RN with Defendant TUSD that she has filed
two

separate

Discrimination

charges
is

the

of

discrimination.

subject

matter

of

The

2010

Charge

the

instant

of

action.

Defendant argues, in the Motion to Dismiss (Doc.11), that the
voluntary dismissal with prejudice of the first federal action
requires dismissal of this action based on res judicata.

Plaintiff

argues that there is no factual nexus between Plaintiff’s June 2010
Charge of Discrimination (EEOC No. 35A2010-00560C) and her August
2012 Charge of Discrimination (EEOC No. 35A-2012-000490C). The
Complaint (Doc. 1) alleges employment discrimination based on
disability, 29 U.S.C. '791, denial of reasonable accommodation,
hostile work environment.
BACKGROUND
While employed with the Defendant as a Registered Nurse (RN),
Plaintiff filed a Charge of Employment Discrimination simultaneously
with the Civil Rights Division of the Arizona Attorney General’s
Office (ACRD) and the United States Equal Employment Opportunity
Commission (EEOC); this Charge was filed in June of 2010. CRD No.
T10-0769; EEOC No. 35A-2010-00560C.

During the 2008-09 school year

Plaintiff was assigned to three schools, Bloom, Cragin and Sewell.
During the 2008-09 school year Plaintiff requested reasonable
accommodation

that

was

recognized

as

needed,

appropriate

and

required. Starting in February 2009 accommodation was provided at
Bloom and Swell and denied at Cragin.

On or about June 3, 2010

Plaintiff was disciplined for alleged unprofessional conduct. This
discipline resulted in a five day suspension without pay. The alleged
2

conduct did not occur as alleged, was premised on Plaintiff’s
disability and retaliation for having engaged in protected conduct.
On or about June 16, 2010 Plaintiff was removed from Bloom without
cause and told all approved accommodations were rescinded. During
the period covered by the aforementioned Charge of Discrimination
Plaintiff repeatedly reported discrimination and her need for
accommodation.
as

an

After Plaintiff identified herself to the Defendant

individual

with

a

disability,

requested

reasonable

accommodation and filed a Charge of Discrimination with the ACRD and
EEOC, she was subjected to adverse employment actions by the
Defendant,

including

discipline.

After

denial

of

investigation

reasonable
of

the

accommodation

June

2010

Charge

and
of

Discrimination by the ACRD, a “reasonable cause” determination
issued on May 27, 2011 that found violations of law due to the conduct
and actions of the Defendant.

The EEOC has issued Plaintiff a Notice

of Right to Sue for Charge No. 35A-2010-00560C which was received
on May 31, 2016. (Complaint at 2-3.) This action was filed in federal
court on August 24, 2016.
For the 2010 Charge of Discrimination, the

EEOC issued to

Plaintiff a Notice of Right to Sue for Charge No. 35A- 2010-00560C
on May 31, 2016. Plaintiff filed the 2010 Charge of Discrimination
action in federal court on August 24, 2016. (CV-16-573-TUC-DCB.) This
is the federal action pending before this Court.
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For the 2012 Charge of Discrimination, the EEOC issued to
Plaintiff a Notice of Right to sue for Charge No. 35A-2012-000490C
on October 23, 2013.

Plaintiff filed an action in federal court on

the 2012 Charge of Discrimination on January 22, 2014.

The 2012

Charge of Discrimination action was voluntarily dismissed without
prejudice on July 31, 2015.

(CV-14-778-TUC-JAS.)

STANDARD OF REVIEW
A court may not dismiss a complaint for failure to state a claim
Aunless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claims which would entitle him to relief.@
Barnett v. Centoni, 31 F.3d 813, 813 (9th Cir.1994) (citing Buckey
v. Los Angeles, 957 F.2d 652, 654 (9th Cir.1992)).

AThe federal rules

require only a >short and plain statement of the claim showing that
the pleader is entitled to relief.= @

Gilligan v. Jamco Dev. Corp.,

108 F.3d 246, 248 (9th Cir.1997) (quoting Fed.R.Civ.P. 8(a)).
Indeed, though A >it may appear on the face of the pleadings that a
recovery is very remote and unlikely [,] ... that is not the test.=
@

Gilligan, 108 F.3d at 249 (quoting Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)).

A >The issue is not whether the plaintiff will

ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.= @ Id.
When analyzing a complaint for failure to state a claim, A[a]ll
allegations of material fact are taken as true and construed in the
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light most favorable to the non-moving party.@
F.3d 1213, 1217 (9th Cir.1996);
25, 27 n. 2 (1977).

Smith v. Jackson, 84

see Miree v. DeKalb County, 433 U.S.

In addition, the district court must assume

that all general allegations Aembrace whatever specific facts might
be necessary to support them.@

Peloza v. Capistrano Unified Sch.

Dist., 37 F.3d 517, 521 (9th Cir.1994), cert. denied, 515 U.S. 1173
(1995) (citations omitted).
DISCUSSION
The 2010 Charge of Discrimination involved the following
contested factual allegations: During the 2008-09 school year
Plaintiff was assigned to three schools, Bloom, Cragin and Sewell.
During the 2008-09 school year Plaintiff requested reasonable
accommodation

that

was

recognized

as

needed,

appropriate

and

required. Starting in February 2009 accommodation was provided at
Bloom and Swell and denied at Cragin.

On or about June 3, 2010

Plaintiff was disciplined for alleged unprofessional conduct. This
discipline resulted in a five day suspension without pay. The alleged
conduct did not occur as alleged, was premised on Plaintiff’s
disability and retaliation for having engaged in protected conduct.
On or about June 16, 2010 Plaintiff was removed from Bloom without
cause and told all approved accommodations were rescinded.

During

the period covered by the aforementioned Charge of Discrimination
Plaintiff repeatedly reported discrimination and her need for
5

accommodation.

In her 2010 Charge of Discrimination federal action,

Plaintiff filed charges of employment discrimination (disability and
denial of accommodation), hostile work environment and retaliation.
The August 2012 Charge of Discrimination involved the following
contested factual allegations: During the 2011-12 school year
Plaintiff was assigned to three schools, Banks, Naylor and Sewell.
During the 2011-12 school year Plaintiff was denied needed staff
support at Naylor and subjected to repeated acts of abusive conduct
by a male subordinate at Banks that was reported. No appropriate
remedial

measure

was

provided.

For

the

2011-12

school

year

Plaintiff was provided a performance evaluation that was not accurate
and critical of the Plaintiff’s performance.

During the 2012-13

school year Plaintiff was assigned to three schools, Banks, Naylor
and Sewell.

During the 2012-13 school year Plaintiff was again

subjected to abusive conduct by a male subordinate at Banks that was
reported and no appropriate remedial measure was provided.

During

the 2012-13 school year Plaintiff received discipline in the form
of a letter of direction on or about August 6, 2012, that was based
upon inaccurate information and administered without prior notice
or any opportunity to respond.
Plaintiff’s

employment

with

During the 2012-13 school year

the

Defendant

was

involuntarily

terminated. In the 2012 Charge of Discrimination federal action, she
charged Defendant with employment discrimination based on disability
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and

gender,

denial

of

reasonable

accommodation,

hostile

work

environment and retaliation. This federal court action is dismissed
with prejudice and closed.
The doctrine of res judicata bars all claims that were or could
have been asserted in a prior action between the parties. See, e.g.,
International Union of Operating Engineers-Employers Const. Indus.
Pension, Welfare & Training Trust Funds v. Karr,994 F.2d 1426, 1430
(9th Cir. 1993); Sidney v. Zah, 718 F.2d 1453, 1458 (9th Cir. 1983).
The principle is “central to the purpose for which civil courts have
been established, the conclusive resolution of disputes within their
jurisdiction.” Montana v. United States, 440 U.S. 147, 153 (1979).
Res judicata vindicates public as well as private interests. The
doctrine spares the parties the burden of re-litigating identical
issues, and vindicates their legitimate interests in repose. The
doctrine also serves the public interests in avoiding inconsistent
results and preserving judicial economy. Clements v. Airport Auth.
of Washoe County, 69 F.3d 321, 330 (9th Cir. 1995).
Defendant argues that the parties are identical, the first
action resulted in a judgment on the merits, and the claims are
identical.

Plaintiff responds that the events and parties that were

the basis for the first action are different from the events and
parties in the current action.

Defendant’s response is that

Plaintiff could have asserted the current claims in the first suit
7

or otherwise preserved this action, but did not.

Plaintiff argues

that there is no factual nexus between Plaintiff’s June 2010 Charge
of Discrimination and her August 2012 Charge of Discrimination.
Plaintiff’s second administrative charge of discrimination, the
August 30, 2012 submission, did not occur until more than a year after
the Civil Rights Division had completed the state investigation and
issued the reasonable cause determination. (Doc. 17, Ex.4.)
The parties (Plaintiff, TUSD) are identical.

Owens v. Kaiser

Found’n Health Workers, 634 F.2d 453,457 (9th Cir. 1980).

The first

action that was voluntarily dismissed with prejudice unequivocally
resulted in a judgment on the merits. Headwaters Inc. v. U.S. Forest
Serv., 399 F.3d 1047, 1052 (9th Cir. 2005).
The courts (including the Ninth Circuit and this Court) have
refined

the

“transactional

nucleus”

issue

in

the

context

of

employment disputes such as this one. The courts recognize that an
employment relationship essentially constitutes one “transactional
nucleus” of facts for the purposes of res judicata. See Mpoyo v.
Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)
(claims arising from employment relationship “relate to the same set
of facts.”); Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)
(res judicata bars hostile work environment claim that could have
been raised in prior discrimination suit).
Defendant asserts that all of Plaintiff’s claims in both of her
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suits undeniably arise directly and solely from her employment
relationship with the Defendant. All of her claims arise out of her
same job with the Defendant (school nurse). All of her claims allege
that the Defendant supposedly violated the statutory prohibitions
against discrimination in the terms and conditions of her employment
relationship with the Defendant. Both suits expressly assert that
the Defendant failed to accommodate Plaintiff, that the Defendant
discriminated against her on the basis of a disability, that the
Defendant unlawfully subjected her to a hostile work environment,
and that the Defendant unlawfully retaliated against her. Because
all of Plaintiff’s claims arise from her employment relationship and
her same job, the precedents in the Ninth Circuit of Appeals compel
the conclusion that for the purposes of res judicata analysis all
such claims arise from the same “transactional nucleus of facts,”
and this present an “identity of claims.” Mpoyo, 430 F.3d at 987.
In assessing whether two suits present a common nucleus the
Court

also

may

consider

the

extent

to

which

they

“could

be

conveniently tried together.” Western Systems, Inc. v. Ulloa, 958
F.2d 864, 871 (9th Cir. 1992) (citing Restatement (Second) Judgments
§ 24(2)). Plaintiff’s suits plainly form a convenient trial unit.
Discovery in both suits would involve her personnel records and other
documents likely stored in the same Defendant office and/or database.
Discovery and trial would implicate the knowledge and conduct of the
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same school officials and witnesses: the teachers, principals, and
others who worked with her during the relevant times and who made
key decisions regarding her employment and accommodations. In other
words, “the witnesses or proofs in the second action would tend to
overlap the witnesses or proofs relevant to the first.” Restatement
(Second) Judgment § 24 cmt. b. The prosecution of this suit impairs
the Defendant’s legitimate right to and interest in finality: its
right to be free from the threat of “piecemeal litigation” involving
matters that supposedly occurred many years ago. See Int’l Union of
Operating Engineers-Employers Const., 994 F.2d at 1431 (9th Cir.
1993) (“Because the audit claim ... could have been brought in the
prior actions, district court properly avoided piecemeal litigation
by invoking the doctrine of res judicata.”).
The Ninth Circuit has made clear “Title VII claims are not exempt
from the doctrine of res judicata where plaintiffs have neither
sought a stay from the district court for the purpose of pursuing
Title VII administrative remedies nor attempted to amend their
complaint to include their Title VII claims.”

Lenk v. Monolithic

Power, 2017 WL 1832198, *1 (slip) (N.D. Cal. 2017) (citing Owens,
244 F.3d at 710). A district court retains broad discretion to control
its docket and may exercise its discretion to dismiss a duplicative
later-filed action, to stay that action pending resolution of the
previously filed action, to enjoin the parties from proceeding with
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it, or to consolidate both actions. Lenk at *2. “To determine whether
a suit is duplicative, the Ninth Circuit borrows from the test for
claim preclusion.” Id. “The Court examines whether the causes of
action and relief sought, as well as the parties or privies to the
action, are the same. The first question entails a further four-prong
transaction

test

that

asks:

(1)

whether

rights

or

interests

established in the prior judgment would be destroyed or impaired by
prosecution of the second action; (2) whether substantially the same
evidence is presented in the two actions; (3) whether the two suits
involve infringement of the same right; and (4) whether the two suits
arise

out

of

the

same

transactional

nucleus

of

facts.” Id. (citing Costantini v. Trans World Airlines, 681 F.2d
1199, 1201–02 (9th Cir. 1982)).
Reliance on Garity v. APWU, 828 F.3d 848 (9th Cir. 2016), is
misplaced in this situation.

Lenk at *3. Because the Ninth Circuit

held “that a prima facie disability discrimination claim against a
union does not require that a plaintiff demonstrate that the union
breached its duty of fair representation,” it found that Garity's
claims

in

his

second

case

were

not

barred

by

issue

preclusion. Id. Given the facts and procedural posture of Garity,
it is inapposite from the case at bar. Id.
Further, the application of res judicata here would not defeat
justice, in that Plaintiff had remedies to avoid the application of
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res judicata, such as seeking a stay or requesting an earlier EEOC
ruling. Ross v. International Brotherhood of Electrical Workers, 634
F.2d 453 (9th Cir. 1980); Moitie v. Federated Department Stores,
Inc., 611 F.2d 1267 (9th Cir. 1980). 1

The Court finds that justice

is not defeated here because of the availability of other remedies.
None

of

the

parties

assert

that

the

first

settlement

contemplated the other pending action in any fashion. In fact, during
oral argument, both parties confirmed that the first action was
dismissed voluntarily by Plaintiff with no collateral agreement or
consideration of the second pending, at that time, administrative
ACRD matter.
To this point, Plaintiff argues that she could not have pursued
a remedy in federal court based on the unavailability of the ACRD
right to sue letter, not issued until May 2016. Again, the law in
the Ninth Circuit Court of Appeals firmly supports the Defendant’s
contrary position in this instance.

Owens, 244 F.3d at 715; Gilbert

v. Maricopa County Superior Court Dep’t of Juvenile Probation, 2011
Westlaw 251463 *2 (D. Ariz. 2011); Gilbert v. Maricopa County, 2010
Westlaw 2712225 *3 (D. Ariz. 2010).
In sum, the first action was dismissed with prejudice, a ruling
on the merits, and included parties identical to the second action,

The parties did not directly address whether the application of res
judicata here would defeat justice, but it has been considered by
the Court.
1

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particularly the employer Defendant TUSD.

Plaintiff did not

preserve the second action, by stay or agreement or consent to proceed
from the EEOC.

The lawsuits were not simultaneous and issue

preclusion does not apply. In this instance, the law clearly requires
a finding of res judicata and a dismissal of this action, as such.
Accordingly,
IT IS ORDERED that the Defendant’s Motion to Dismiss (Doc. 11)
is GRANTED and this action is DISMISSED.
their own attorney fees and costs.

All parties are to bear

This action is closed.

The

Clerk’s Office should enter a Final Judgment that conforms with this
Order.

Dated this 10th day of August, 2017.

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