Keaton v. Rehabilitation Services et al

Filing 40

ORDER. For the reasons discussed in the attached, the 19 Motion to Dismiss is GRANTED. The Clerk is directed to close this case. Signed by Judge Michael P. Shea on 8/2/2018. (Taykhman, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANTOINETTE KEATON,
Plaintiff,

No. 3:17-CV-1492 (MPS)

v.
DEPARTMENT OF REHABILITATION
SERVICES, DAVID JOHNSON, and LYNN
FRITH,
Defendants.
RULING ON MOTION TO DISMISS
Plaintiff Antoinette H. Keaton filed this action against Defendants the State of Connecticut
Department of Rehabilitation Services (“DORS”), David Johnson, and Lynn Frith, after she was
denied a promotion to the position of Senior Vocational Rehabilitation Counselor. Defendants
move to dismiss the complaint, which sets forth claims for deprivation of Keaton’s rights by each
Defendant, respectively, under 42 U.S.C. § 1983 (Counts One, Three, and Five) and 42 U.S.C. §
1981 (Counts Two, Four, and Six) based on theories of retaliation, discriminatory failure to
promote, and hostile work environment. (ECF No. 1-1.) Keaton seeks compensatory and punitive
damages and an order placing Keaton in the position of Senior Vocational Rehabilitation
Counselor, among other relief.
Because this case is duplicative of another action Keaton has filed, which remains pending
in this Court, I GRANT the motion to dismiss.
I.

Background

The complaint alleges that Keaton, an African-American woman, was subject to a
“continuous course of discriminatory conduct” while employed at DORS, “including the denial of
a promotion to the position of Senior Vocational Rehabilitation Counselor.” (ECF No. 1-1 ¶¶ 1,
4.) The allegations in the complaint are virtually identical to those set forth in another case pending

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before me, Keaton v. DORS, No. 3:16-CV-1810 (MPS) (hereinafter Keaton I). I therefore assume
familiarity with the underlying facts as set forth in the Court’s ruling on the motion to dismiss in
Keaton I (No. 16-CV-1810, ECF No. 61), and recount only those additional facts that are relevant
to the instant motion.
On October 5, 2016, Plaintiff filed Keaton I against DORS, Johnson, and Frith, asserting
claims of failure to promote, harassment, retaliation, and hostile work environment, in violation of
state law and Title VII, arising out of her employment relationship with DORS. (Keaton I, ECF
No. 1-1.). Keaton later filed an amended complaint in that case, but the amended complaint named
only “the State of Connecticut” as a defendant. (Keaton I, ECF No. 29.) As a result, Keaton was
provided seven days within which she could file a new amended complaint naming other
defendants. The order warned that if she failed to file such an amended complaint, the Court would
terminate the other parties named in the original complaint, but omitted from the caption in the
amended complaint. (Keaton I, ECF No. 30.) Keaton failed to file an amended complaint within
the time allotted, after which the Court, pursuant to its prior order, terminated DORS, Frith, and
Johnson as defendants.
After the seven-day window had closed, in contravention of the Court’s order, Keaton filed
a new amended complaint, again naming the State of Connecticut, DORS, Frith, and Johnson as
defendants. (Keaton I, ECF No. 33.) During a telephonic status conference, the parties agreed that
the proper organizational defendant was DORS, and the Court reinstated DORS as a defendant
and terminated the State of Connecticut. The Court also clarified that the amended complaint
Keaton filed after the close of the seven-day window, naming Frith and Johnson as defendants in
addition to DORS, was not the operative complaint, and ordered that document stricken. (Keaton
I, ECF No. 35.)

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After previously moving to dismiss the prior version of the complaint, DORS filed an
amended motion to dismiss the operative complaint in Keaton I. (Keaton I, ECF No. 36.) Keaton
failed to respond timely to the amended motion to dismiss, despite being granted an extension of
time to do so. (Keaton I, ECF No. 41.) The Court ordered Plaintiff to show cause why sanctions
should not be imposed for repeated failure to comply with court-ordered deadlines. (Id.) The Court
ultimately declined to impose sanctions but warned that repeated failures to comply with Court
orders would be considered in deciding whether to impose sanctions in the future, in the event of
other missed deadlines. (Keaton I, ECF No. 46.)
After briefing was completed on the motion to dismiss, and based on Plaintiff’s
representations that she could re-plead sufficient facts to address the defects discussed in DORS’s
motion, the Court allowed Keaton one final opportunity to amend her complaint. (Keaton I, ECF
No. 49.) Keaton filed a Second Amended Complaint—one day after the deadline provided—
naming only DORS as a defendant. (Keaton I, ECF No. 50.) On June 30, 2017, DORS renewed its
motion to dismiss with respect to the Second Amended Complaint. (Keaton I, ECF No. 54.) That
motion was fully briefed on August 11, 2017. (Keaton I, ECF No. 58.)
Meanwhile, Plaintiff filed this lawsuit in state court on July 31, 2017, alleging violations
of 42 U.S.C. § 1981 and § 1983 against Defendants DORS, Johnson, and Frith arising out of her
employment at DORS. (ECF No. 1-1.) Specifically, Keaton alleges that she was denied a
promotion to the position of Senior Vocational Rehabilitation Counselor, suffered adverse
employment actions in retaliation for speaking out about DORS’s treatment of minority
employees, and experienced a hostile work environment while employed at DORS. (ECF No. 11).

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The Court granted in part and denied in part the motion to dismiss the Second Amended
Complaint in Keaton I. (Keaton I, ECF No. 61.) I dismissed Keaton’s claim that DORS
discriminated against her in violation of 42 U.S.C. § 1981, as I found that the Eleventh Amendment
barred the Court from exercising jurisdiction over that claim. I found that Keaton failed to state a
claim for hostile work environment under Title VII, and dismissed that claim. I also dismissed
Keaton’s claim for punitive damages. I denied the motion to dismiss, however, with respect to
Keaton’s failure-to-promote and retaliation claims against DORS. (Id.) Discovery is ongoing in
Keaton I as to those claims.
Before me is Defendants’ motion to dismiss the complaint in this action. Defendants argue
that this lawsuit is entirely duplicative of Keaton I, and that Keaton filed this lawsuit in an attempt
to avoid the Court’s orders in her first lawsuit. Defendants raise several other arguments on the
merits in support of the motion to dismiss: that Keaton’s claims against DORS are barred by the
Eleventh Amendment; that Keaton’s Section 1981 claims fail because there is no private cause of
action against state actors under that statute; that Keaton may not enforce Title VII or the
Connecticut Fair Employment Practices Act (“CFEPA”) through Section 1983; that Keaton’s
claims are time-barred; that Frith and Johnson are entitled to qualified immunity; and that Keaton
fails to state a plausible claim for relief. Because I find that this case must be dismissed as
duplicative of Keaton’s first-filed suit, I need not reach these other arguments.
II.

Discussion

Plaintiff does not appear to dispute that this case is duplicative of Keaton I. Rather, she
argues that if the Court finds that it is duplicative, the Court should exercise its discretion to
consolidate the two actions or stay this action. (See ECF No. 28 at 5.) I agree with Defendants that
the two suits are duplicative and that this suit should be dismissed as a result.

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“As part of its general power to administer its docket, a district court may stay or dismiss
a suit that is duplicative of another federal court suit.” Curtis v. Citibank, N.A., 226 F.3d 133, 138
(2d Cir. 2000). “While the rule against duplicative litigation is distinct from claim preclusion . . .,
the former analysis borrows from the latter to ‘assess whether the second suit raises issues that
should have been brought in the first.’” Davis v. Norwalk Econ. Opportunity Now, Inc., 534 Fed.
Appx. 47, 48 (2d Cir. 2013) (quoting Curtis, 226 F.3d at 139-40). Thus, two cases need not have
“identical facts, legal theories, and remedies” to be duplicative. Davis, 534 Fed. Appx. at 48.
Rather, courts determining whether litigation is duplicative consider “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.” Id. (quoting Waldman v.
Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000)). “[S]imple dismissal” is a “common
disposition” of a second-filed, duplicative suit, as “plaintiffs have no right to maintain two actions
on the same subject in the same court, against the same defendant at the same time.” Curtis, 226
F.3d at 139.
In Davis, the Second Circuit held that the district court properly concluded that the
plaintiff’s complaint, in which she alleged violations of the False Claims Act, was duplicative of
a pending Title VII action against her former employer, as the suits were both based on allegations
that the plaintiff reported co-worker misconduct to certain individuals and suffered specific
adverse employment actions in retaliation for her complaints. Davis, 534 Fed. Appx. at 48-49.
Here, as in Davis, “the facts alleged in the two complaints are not simply related in time, space
and origin. They are nearly identical.” Id. at 48. All of the facts alleged in this suit were alleged in
Keaton I; in fact, many of the allegations in this case repeat those in Keaton I verbatim. The cases
are based on the same alleged discriminatory conduct by the same actors, including the same

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alleged adverse actions and harassment. All of the allegations in this case therefore arose before
Keaton I was filed, and any claims based on those allegations could have been included in the
complaint in Keaton I. Cf. Curtis, 226 F.3d at 140 (finding an abuse of discretion in dismissal of
claims based on events arising after the first suit was filed). The two suits therefore share a
common inquiry: whether Keaton was denied a promotion on the basis of race, whether individuals
at DORS had a “legitimate and lawful reason for taking the adverse employment actions of which
[Keaton] complains,” Davis, 534 Fed. Appx. at 48, and whether Keaton was subject to a hostile
work environment at DORS. Thus, the two suits also would have formed a “convenient trial unit”
and addressing all of Keaton’s claims in one litigation would have “conformed to the parties’
expectations,” regardless of the fact that the two complaints allege different legal theories. Id. at
48-49 (alterations omitted); see also Cieszkowska v. Gray Line New York, 295 F.3d 204, 206 (2d
Cir. 2002) (affirming dismissal of complaint as barred by res judicata despite plaintiff’s raising
new theory of discrimination, as both suits were based on the same events during plaintiff’s
employment by defendant).
That Frith and Johnson are not currently named defendants in Keaton I does not detract
from the conclusion that the two suits are duplicative. Frith and Johnson—DORS employees
whose conduct is the focus of Keaton I—are “in privity with the defendant[] named in the original
complaint,” as they were employees of DORS at the relevant time, “and their interests are
adequately represented by those in the first suit who are vested with the authority of
representation.” DiGennaro v. Whitehair, 467 Fed. Appx. 42, 44 (2d Cir. 2012) (affirming
dismissal of complaint against town police officers as duplicative of pending suit against the town
and other members of the police department) (internal quotations omitted); see also Barclay v.
Lowe, 131 Fed. Appx. 778, 779 (2d Cir. 2005) (affirming dismissal of duplicative suit, where

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plaintiff named different defendants in second suit, because the defendants in the second suit were
in privity with those in the first suit). I therefore find that this action is duplicative of Keaton I.
The procedural history of the two suits at issue here—and in particular, Plaintiff’s failure
to name Frith and Johnson as defendants in Keaton I in a timely manner—counsels in favor of
dismissal, rather than consolidating or staying this action. The Second Circuit has held that “a
district court does not abuse its discretion in denying leave to amend the pleadings after the
deadline set in the scheduling order where the moving party has failed to establish good cause,”
and that dismissal is appropriate where the plaintiff resorts to filing a second lawsuit rather than
complying with deadlines. DiGennaro, 467 Fed. Appx. at 43 (holding that the district court did
not abuse its discretion in finding the plaintiff failed to demonstrate good cause for circumventing
the scheduling order by filing a second lawsuit rather than timely moving to amend the complaint
in the first lawsuit) (quoting Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.
2000)); see also Davis, 534 Fed. Appx. at 49 (finding “no error in the district court’s determination
that [plaintiff’s] second filing was an attempt to avoid the consequences of delay in amending her
initial complaint”).
Keaton has not established good cause for repeatedly failing to comply with scheduling
orders in Keaton I. (See e.g., Keaton I, ECF No. 61 (considering imposing sanctions against
Plaintiff’s former counsel for repeated failures—even after multiple warnings—to follow court
orders).) Moreover, she provides no reasoning for her decision not to name Frith and Johnson as
defendants in the operative complaint in Keaton I, despite being given several opportunities to
amend the complaint, even after missing court-ordered deadlines.
Plaintiff concedes that she filed this lawsuit against Frith and Johnson in state court because
they were terminated from Keaton I after she failed to timely name them as defendants in her

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amended complaint. Keaton maintains that her decision to file this action in state court was the
result of her former counsel’s greater “familiar[ity] with the procedure and practices in State
Court” (ECF No. 28 at 6), and her firm belief that “Frith and Johnson were primarily responsible
for the culture at DORS,” and “that they should be accountable for their actions.” (Id. at 3.) These
rationales do not amount to good cause for Keaton’s failure to comply with court-imposed
deadlines in Keaton I, and the fact that Keaton now urges the Court to consolidate the actions is
further evidence of her intent to circumvent the Court’s orders in Keaton I and revive claims
against Frith and Johnson after they were dismissed in that action. (See ECF No. 28 at 17.)
Allowing this suit to proceed would send the message that after litigants fail to comply
with court orders, they may file identical lawsuits in another court to avoid the consequences of
their non-compliance and reinstate dismissed claims. See Curtis, 226 F.3d at 140 (“By filing them
in a second action, plaintiffs attempted to avoid the consequences of their delay.”). Thus, it would
undermine the policy underlying the rule against duplicative litigation, which is “meant to protect
parties from the vexation of concurrent litigation over the same subject matter.” Id. at 138 (internal
quotation marks omitted); see also Hubert v. Dep’t of Corr., No. 3:17-cv-248 (VAB), 2018 WL
1582511, at *5-6 (D. Conn. Mar. 30, 2018) (declining to consolidate duplicative claims). I
therefore decline to exercise my discretion to consolidate these actions or stay this action until the
conclusion of Keaton I, and find that dismissal of this action is appropriate.
III.

Conclusion

For the reasons stated above, the motion to dismiss is GRANTED. The case is
DISMISSED.

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IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
August 2, 2018

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