Meltzer v. City Of Wilmington
MEMORANDUM ORDER granting in part and denying in part 17 MOTION for Summary Judgment (see order for further details). Signed by Judge Richard G. Andrews on 7/5/2012. (ksr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARTIN C. MELTZER
Civil Action No. 11-563-RGA
CITY OF WILMINGTON,
The Court having considered Defendant's Motion for Summary Judgment (D.I. 17), as
well as the papers filed in connection therewith;
IT IS HEREBY ORDERED, for the reasons discussed below, that:
Defendant's Motion for Summary Judgment is GRANTED IN PART and
DENIED IN PART.
Plaintiff filed a complaint against Defendant in the Superior Court of Delaware on
December 26, 2007 (D.I. 22) alleging that Defendant "discriminated against him based on his
age, retaliated against him for participating in protected activity, placed him on unpaid leave in
violation of his due process rights, and breached his employment contracts." Meltzer v. City of
Wilmington, 2011 WL 1312276, at* 1 (Del. Super. Ct. April6, 2011), aff'd, 36 A.3d 350 (Del.
Defendant asserts that the present action should be dismissed as a matter of law in
accordance with the doctrines of res judicata and collateral estoppel because the factual and legal
issues in this case are the same as in the state court action. The court examines three factors to
determine whether to apply res judicata: "( 1) final judgment on the merits in a prior suit
involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause
of action." Lubrizol Corp. v. Exxon Corp., 929 F.2d 960,963 (3d Cir. 1991). "If each ofthese
three factors are present, the court must dismiss, as precluded by res judicata, any claim that was
previously raised or which could have been raised previously." Roberts v. White, 698 F.Supp.2d
457,460 (D. Del. 2010). Collateral estoppel applies when "(1) a question of fact essential to the
judgment, (2) [was] litigated and (3) determined (4) by a valid and final judgment." Taylor v.
State, 402 A.2d 373, 375 (Del. 1979). "Essentially, res judicata bars a court ... from
reconsidering conclusions of law previously adjudicated while collateral estoppel bars relitigation
of issues of fact previously adjudicated." Hsu v. Wolpo.ff & Abramson L.L.P., 2009 WL
3046141, at *3 (D. Del. Sept. 21, 2009) (citations omitted), a.ff'd sub nom. Hsu v. Great Seneca
Fin. Corp., 378 Fed. Appx. 196 (3d Cir. 2010).
In Morgan v. Covington Township, the Third Circuit adopted the bright line rule
that "res judicata does not bar claims that are predicated on events that postdate the filing of the
initial complaint." 648 F.3d 172, 178 (3d Cir. 2011). The court reasoned that, "A contrary rule
would only invite disputes about whether plaintiffs could have amended their initial complaints
to assert claims based on later-occurring incidents." Id.
Plaintiffs claim for retaliation in the present action is based on the five
allegations that he "suffered adverse [employment] consequences in the form of a written
disciplinary warning, the refusal of the City to hold a due process hearing, the unreasonable
demands of the City for a Committee opinion (which it chose not to follow), the materially
adverse change to Plaintiffs job duties, and being placed on unpaid leave (without pay or
benefits for a period of over two months)." (D.I. 1 at ,-r 23).
Plaintiff alleges that the written disciplinary warning was issued in February 2007
(D .I. 1 at ,-r 10), ten months before Plaintiff filed the state court action. Therefore, the claim that
the written disciplinary warning constituted retaliation could have been brought in the state court
action and is barred by res judicata. See Roberts, 698 F.Supp.2d at 460. Accordingly, summary
judgment is granted in favor of Defendant as to the claim that Defendant retaliated against
Plaintiff by issuing a written disciplinary warning.
The Plaintiffs complaint alleges that the four other acts of retaliation took place
in or after July 2008, January 2008, October 2008, and July 2008. (D.I. 1, ,-r,-r 13, 17, 19). Thus,
following Morgan, they are not barred by res judicata as claims that could have been raised
previously. There remains the issue whether they actually were raised previously.
The Superior Court did address Plaintiffs claim that the City denied him a due
process hearing, demanded the Ethics Opinion, and placed him on unpaid leave, but the Superior
Court addressed these claims in the context of Plaintiffs due process and breach of contract
claims in the state court action. See Meltzer, 2011 WL 1312276, at* 14-15. These claims were
not analyzed under the Burlington Northern standard in the context of an age-based retaliation
claim. 1 See Burlington Northern v. White, 548 U.S. 53 (2006). These claims were not "the
Plaintiff filed a separate charge based upon age-based retaliation with the EEOC
in September 2008. (D.I. 20, Ex. A at~ 2). However, the EEOC did not issue a right to sue
letter until March 2011. (D .I. 1 at ~ 6). Defendant argues that Plaintiff could have requested the
right to sue letter as early as March 2009 and could have amended his complaint in the state court
action to include his retaliation claim. Defendant, thus, argues that Plaintiff should be barred
from bringing this claim in the instant action. Morgan holds otherwise.
same cause of action" as the present retaliation complaint. Thus, they are not barred by res
judicata, and Defendant's motion for summary judgment is denied as to these claims.
Finally, with respect to the allegation concerning materially adverse changes to
Plaintiffs job duties, Defendant makes three arguments. First, Defendant asserts that Plaintiffs
job duties changed because the Ethics Opinion dictated that the City change his job duties. (D.I.
21 at 4). It is not clear that the Ethics Opinion requires that the Plaintiff can never work on labor
and employment matters. Rather, the opinion states that the City is required to "take appropriate
measures to minimize the risk of conflict, such as avoiding the assignment to [Plaintiff] of cases
and projects involving the same or similar factual or legal issues raised in his lawsuit." (D.I. 211 at 16). To the extent Plaintiff argues that the Ethics Opinion permits him to work on at least
some labor and employment matters, there is a disputed material issue of fact. Second,
Defendant contends that this issue was explored in discovery in the state action. (D.I. 21 at 4).
The few snippets of deposition testimony to which Defendant points (less than three pages) are
not evidence that this issue was explored thoroughly in discovery in the state action nor evidence
that further discovery in the instant action would be repetitious or overly burdensome. (D.I. 21-1
at 4, 19). The limits of permissible discovery are irrelevant to the res judicata argument. Third,
Defendant argues that this is a claim that could have been brought in the state court action. (D.I.
21 at 4). Morgan refutes the third argument. Accordingly, Defendant's motion for summary
judgment is denied as to Plaintiffs claim that Defendant retaliated against him by changing his
The Defendant's papers are not very clear on its collateral estoppel theory. The
gist seems to be that the Superior Court found that the alleged retaliatory acts were not adverse
employment actions. There is a portion of the Superior Court's opinion where it finds various
city actions were not adverse employment actions, Meltzer, 2011 WL 1312276, at* 10-11, but the
actions considered were not the same ones at issue in this litigation. Finding that some of the
actions at issue in this litigation did not constitute a breach of contract or constitute a due process
violation is not a question of fact essential to the judgment in this case.
of July, 2012.
on. Richard G. ndrews
United States Di trict Judge
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