Howard v. Transportation

Filing 39

ORDER denying 27 Motion to Dismiss; denying as moot 29 Motion to Stay Discovery. Signed by Judge Robert N. Chatigny on 9/30/2015. (Panchenko, I)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL HOWARD
Plaintiff,
v.
CONNECTICUT DEPARTMENT OF
TRANSPORTATION
Defendant.

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Case No. 3:14-cv-947(RNC)

RULING AND ORDER
Plaintiff Michael Howard, proceeding pro se, brings this
action against his former employer, the Connecticut Department of
Transportation (the "DOT"), under Title VII of the Civil Rights
Act of 1964 and the Americans with Disabilities Act. Defendant
has moved to dismiss on the ground of res judicata.

For the

reasons that follow, the motion is denied.
I. Background
Plaintiff is an African-American male who worked as a
Maintainer for the DOT from 1989 until his termination in 2009.
From 2002 through 2004 plaintiff worked under Transportation
General Supervisor Brian Brouillard at the Groton Maintenance
Garage.

Plaintiff received two unsatisfactory performance

reviews by Brouillard.

Shortly thereafter, plaintiff signed a

stipulation agreement (the "Last Chance Agreement") that any
subsequent disciplinary action would result in termination.

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Plaintiff was subsequently transferred to the Waterford
Maintenance Garage.

On May 16,2008, an assistant agency

personnel administrator at the DOT issued a letter terminating
Howard's employment for violating the Last Chance Agreement.
Howard then filed his first complaint with the Connecticut
Commission on Human Rights and Opportunity ("CHRO").

Rather than

prosecute the claim, however, Howard entered into a second Last
Chance Agreement with the DOT in August 2008 and returned to work
at the Waterford garage.

There, his work was once against

overseen by Brouillard, who had been transferred to Waterford.
Following two incidents -- one in November 2008 and another in
February 2009 -- plaintiff was terminated for breaching the Last
Chance Agreement.
On March 3, 2009, plaintiff filed an affidavit of illegal
discriminatory practice with the CHRO and the Equal Employment
Opportunity Commission ("EEOC").

The EEOC suspended its

investigation and referred plaintiff to the CHRO.

Plaintiff's

affidavit contained three claims:
(1) Disparate treatment on the basis of race and color under
Conn. Gen. Stat. § 46a-60(a)(1) or 46a-58(a) and Title VII
of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§
2000e, et seq.;
(2) Failure to provide reasonable accommodation-based
disability discrimination under Conn Gen. Stat. § 46a60(a)(1) and the Americans with Disabilities Act (the
"ADA"), § 42 U.S.C. 12101; and

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(3) Stated grounds for termination were pretext; plaintiff
was fired for the reasons above as well as retaliation for
opposing discriminatory practices.
The CHRO investigator conducted an initial merits assessment
review and found reasonable cause to believe that an unfair
practice was committed as alleged in the affidavit.

Following

unsuccessful mediation efforts, the CHRO held a two-day hearing
in April 2013.
hearing.

Plaintiff was represented by counsel at the

Following the submission of post-hearing briefs in May

2013, the referee dismissed all three of plaintiff's claims on
October 31, 2013.

With regard to plaintiff's first claim, the

referee found that plaintiff had established a prima facie case
of discrimination but could not prove by a preponderance of the
evidence that the DOT's legitimate, non-discriminatory reasons
for termination were pretextual.

The referee also found that

plaintiff failed to satisfy his burden to produce evidence of
discriminatory animus on the part of his superiors.

With regard

to plaintiff's second claim, the referee found that the DOT
engaged in the statutorily mandated "interactive process" to
reasonably accommodate plaintiff's alleged disability, but was
relieved of further obligations on plaintiff's termination.
Finally, the referee found that plaintiff failed to brief his
third claim.

Plaintiff did not appeal the referee's judgment.

Rather, he requested a right to sue letter from the EEOC and

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filed this suit, pro se, on June 30, 2014, alleging
discrimination in violation of Title VII and the ADA.
The DOT moves to dismiss plaintiff's complaint on the ground
of res judicata.

The DOT argues that both the CHRO matter and

the present matter arise out of plaintiff's termination of
employment with the DOT.

The CHRO matter was litigated to the

fullest extent possible and plaintiff should therefore not be
afforded a second opportunity to litigate his claims.

Plaintiff

responds that his CHRO matter was not fully litigated because his
counsel failed to adequately represent his interests before the
CHRO referee, the post-trial brief his counsel filed did not
mention the affirmative action report or the CHRO full
investigation, and the referee erred in not considering the
affirmative action division's report.

Thus, plaintiff urges that

this matter should proceed.
II. Discussion
Though res judicata is an affirmative defense, it may be
raised on a motion to dismiss under Rule 12(b)(6).
v. Hyland, 647 F. Supp. 2d 143, 152 (D. Conn. 2009).

See Sullivan
"Dismissal

under [Rule] 12(b)(6) is appropriate when . . . it is clear from
the face of the complaint, and matters of which the court may
take judicial notice, that the plaintiff's claims are barred as a
matter of law."

Conopco, Inc. v. Roll Intern., 231 F.3d 82, 86

(2d Cir. 2000).

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Defendant argues that the disposition of plaintiff's CHRO
complaint precludes this suit.

Under the Full Faith and Credit

statute, 28 U.S.C. § 1738, federal courts are required “to give
the same preclusive effect to state court judgments that those
judgments would be given in the courts of the State from which
the judgments emerged.”
461, 466 (1982).

Kremer v. Chem. Constr. Corp., 456 U.S.

Section 1738 does not apply, however, to

unreviewed state agency determinations.
Elliott, 478 U.S. 788, 794 (1986).

Univ. of Tennessee v.

Such determinations are

nevertheless frequently granted preclusive effect under federal
common law "in the absence of a governing statute" indicating a
contrary congressional intent.

Id. at 797-99.

Congress has expressed such an intent in the area of
employment discrimination.

In Elliott, the Supreme Court held

that for purposes of Title VII claims, the rule of preclusion set
forth in Kremer does not extend to administrative determinations
when the plaintiff has not sought judicial review in state court.
See 478 U.S. at 795.

The Court observed that statutory

provisions requiring the EEOC to give "'substantial weight to
final findings and orders made by State or local authorities in
proceedings commenced under State or local law' . . . would make
little sense if state agency findings were entitled to preclusive
effect in Title VII actions in federal court."

Id. (quoting 42

U.S.C. § 2000e-5(b)); see also Joseph v. Athanasopoulos, 648 F.3d

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58, 62 (2d Cir. 2011) ("The Court then declined to fashion a
common law rule affording preclusive effect to these unreviewed
administrative determinations in the Title VII context, finding
that such a rule would be inconsistent with Congress's intent
that Title VII plaintiffs receive a trial de novo in federal
court following state administrative proceedings.").

It is thus

well established that an unreviewed state administrative
determination does not preclude de novo federal court
consideration of a Title VII claim.
What is less clear, however, is whether Elliott applies to
ADA claims.
facts.

The Supreme Court has extended Elliott beyond its

See Astoria Fed. Savs. & Loan Ass'n v. Solimino, 501 U.S.

104, 110-14 (1991) (ADEA claims).

But neither the Court nor the

Second Circuit have ruled directly on the issue here.

Still, the

First and Ninth Circuits and several courts within this Circuit
have extended Elliott to ADA claims.

See Medeiros v. City of San

Jose, No. 98-16530, 1999 WL 613405, at *1 (9th Cir. Aug. 12,
1999); Thomas v. Contoocook Valley Sch. Dist., 150 F.3d 31, 39 n.
5 (1st Cir. 1998); Joseph v. HDMJ Restaurant, Inc., 685 F. Supp.
2d 312, 317 (E.D.N.Y. 2009); Smith-Henze v. Edwin Gould Servs.
for Children and Families, No 06 Civ. 3049 (LBS)(DCF), 2006 WL
3771092, at *3-4 (S.D.N.Y. Dec. 21, 2006); Greenberg v. N.Y.C.
Transit Auth., 336 F. Supp. 2d 225, 243 (E.D.N.Y. 2004); Jones v.
N.Y.C. Hous. Auth., No. 94 Civ. 3364, 1995 WL 736916, at *1-2

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(S.D.N.Y. Dec. 13, 1995).

But see Cobian v. City of New York,

No. 04 Civ. 1941 (GEL), 2006 WL 212292, at *5 (S.D.N.Y. Jan. 24,
2006) (plaintiff's ADA claim barred by decision of city
administrative law judge); Kalanquin v. Heublein, Inc.,
3:98CV1990 (EBB), 1999 WL 1249285, at *3-4 (D. Conn. June 21,
1999) (same).

Dicta from the Second Circuit further suggests

extending the rule to ADA claims. See Kosakow v. New Rochelle
Radiology Assoc., 274 F.3d 706, 728 (2d Cir. 2001) (noting in
dicta that "to the extent [plaintiffs'] employment discrimination
claims were based on the ADA, the determination of the [New York
State Division of Human Rights] would have no effect on
subsequent federal litigation.").
Defendants rely on Kalanquin to argue that this Court should
apply Kemer, not Elliott, and dismiss plaintiff's ADA claim.
Kalanquin, however, is inapposite.

There, unlike in the present

case, the plaintiff sought review in the Connecticut Superior
Court, which affirmed the CHRO's decision and dismissed the
appeal.

1999 WL 1249285, at *1.

This Court agrees with the case

law and Second Circuit dicta extending Elliott to ADA claims
when, as here, agency determinations are unreviewed.
Although plaintiff's claims were resolved on the merits by
the CHRO, that administrative determination was not affirmed by a
state court.

Consequently, the adverse administrative

determination does not preclude plaintiff from pursuing his Title

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VII or his ADA claim in federal court.
VI.

Conclusion
Accordingly, defendant's motion to dismiss is hereby denied.

Defendant's motion to stay discovery is also denied.
So ordered this 30th day of September, 2015.

/s/ RNC
Robert N. Chatigny
United States District Judge

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