CONLEY v. WINDOWS LLC et al
Filing
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ORDER - For the foregoing reasons, the Court GRANTS Windows' Motion to Dismiss, 11 , and DISMISSES Mr. Conley's claims against Windows WITH PREJUDICE. No partial final judgment shall enter at this time. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 6/3/2021. (MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GERALD CONLEY,
Plaintiff,
vs.
WINDOWS, LLC OF INDIANA A/K/A
WINDOWS, LLC or RENEWAL BY ANDERSEN
OF INDIANA; and RENEWAL BY ANDERSEN,
LLC,
Defendants.
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No. 1:20-cv-02572-JMS-MPB
ORDER
Plaintiff Gerald Conley was a Marketing/Revisit Manager at Defendant Windows, LLC of
Indiana (also known as Windows, LLC or Renewal by Andersen of Indiana) ("Windows") from
June 2017 to October 2018. After his infant daughter was diagnosed with a health issue, Mr.
Conley alleges that he was not offered or provided leave under the Family and Medical Leave Act,
29 U.S.C. § 2601, et seq. ("FMLA"). He initiated this litigation, asserting claims for FMLA
interference against Windows and Defendant Renewal by Andersen, LLC ("Andersen"). Windows
has filed a Motion to Dismiss, arguing that Mr. Conley is barred from bringing his FMLA claims
in this lawsuit because he did not raise those claims in a previous lawsuit he filed against Windows
for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The Motion
to Dismiss, [Filing No. 11], is now ripe for the Court's consideration.
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I.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) "requires only 'a short and plain statement of the
claim showing that the pleader is entitled to relief.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. Pro. 8(a)(2)). "Specific facts are not necessary, the statement need only 'give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson,
551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
A motion to dismiss asks whether the complaint "contain[s] sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing the sufficiency of a complaint,
the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the
plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). The Court
will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief.
See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must
plausibly state an entitlement to relief "to a degree that rises above the speculative level." Munson
v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is "a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense." Id.
When a plaintiff "pleads himself out of court by making allegations sufficient to defeat the suit,"
dismissal under Rule 12 is appropriate. Vincent v. City Colleges of Chicago, 485 F.3d 919, 924
(7th Cir. 2007).
II.
BACKGROUND
The following factual allegations are taken from the Complaint, [Filing No. 1], and from
the filings in another case Mr. Conley initiated in this Court, Conley v. Windows, LLC of Indiana,
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1:19-cv-3164-JMS-MPB ("Conley I"). 1 The allegations in Mr. Conley's Complaint in this case
("Conley II") are accepted as true solely for the purpose of this Order.
A.
Mr. Conley's Employment at Windows
Mr. Conley worked for Windows in sales and as a Marketing/Revisit Manager between
June 2017 and October 2018. [Filing No. 1 at 2.] During that time, Mr. Conley was also jointly
employed by, and subject to the control of, Andersen. [Filing No. 1 at 2.]
Mr. Conley's daughter was born on June 19, 2018 and, at that time, Mr. Conley had worked
for Defendants for more than one year, had worked more than 1,500 hours in the preceding year,
and was eligible to take FMLA leave over the next twelve months in connection with his daughter's
birth and for bonding purposes. [Filing No. 1 at 2-3.] After her birth, Mr. Conley's daughter was
diagnosed with a kidney issue and, on September 26, 2018, she had an examination and ultrasound
that led to additional diagnoses. [Filing No. 1 at 3.]
On October 1, 2018, Mr. Conley received one quarter of an "attendance point" for being
one minute late to work at Windows. [Filing No. 1 at 3.] On October 2 and 3, 2018, Mr. Conley's
daughter was admitted to the hospital for evaluation, care, treatment, and surgery. [Filing No. 1
at 3.] At that time, Mr. Conley was eligible for FMLA leave in connection with his daughter's
inpatient hospital care, treatment, serious health conditions, and her birth, and for bonding
purposes. [Filing No. 1 at 3.] Mr. Conley was absent from work on October 2, 2018 due to his
daughter's inpatient care and treatment at the hospital, and was given an unpaid leave day that was
"approved/waived" by his supervisor, Laurin Wright, and Windows' Human Resources Officer.
[Filing No. 1 at 3.] But Mr. Conley was not offered or provided with FMLA leave in connection
1
The Court may take judicial notice of the filings in Conley I. See Matthews v. Capital One Bank,
2008 WL 4724277, at *2 (S.D. Ind. 2008) ("[A] district court can 'take judicial notice of matters
of public record without converting a [motion to dismiss] into a motion for summary judgment'").
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with his October 2, 2018 absence and instead could only use unpaid leave, even though Ms. Wright
knew or "had probable cause to know" that he was absent from work that day in connection with
his daughter's inpatient care and treatment and her serious health conditions. [Filing No. 1 at 34.]
Mr. Conley's daughter had surgery on October 3, 2018, and Mr. Conley again received one
quarter of an "attendance point" for being one minute late to work. [Filing No. 1 at 4.] Mr. Conley
was not offered or provided with FMLA leave in connection with the October 3, 2018 attendance
discipline even though Ms. Wright knew or "had probable cause to know" that he had been absent
from work on October 2, 2018 in connection with his daughter's inpatient care and treatment and
her serious health condition, and that he was eligible to take FMLA leave in connection with his
daughter's birth and for bonding purposes. [Filing No. 1 at 4.]
After the October 3, 2018 surgery, Mr. Conley needed to be absent from work to help care
for his daughter and also wanted to take leave in connection with his daughter's birth and to bond
with her. [Filing No. 1 at 4.] On October 4, 2018, Mr. Conley requested a leave from work until
November 20, 2018. [Filing No. 1 at 4.] At that time, Ms. Wright and Mr. Conley's other
supervisors knew or "had probable cause to know" that he needed to be absent from work to care
for his daughter's serious health condition, and that he was eligible to take FMLA leave in
connection with his daughter's birth and for bonding purposes. [Filing No. 1 at 4-5.] However,
Mr. Conley was not offered or provided with FMLA leave in connection with his October 4, 2018
leave request. [Filing No. 1 at 5.]
After submitting his October 4, 2018 leave request, Ms. Wright informed Mr. Conley that
someone above her would need to review the request. [Filing No. 1 at 5.] Mr. Conley advised
Ms. Wright that he would "provide any further explanation of his leave request with whomever
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before a final determination was made on his leave request." [Filing No. 1 at 5.] Neither Ms.
Wright nor any other supervisor followed up with Mr. Conley to inquire about his leave request or
the reason he was requesting leave. [Filing No. 1 at 5.] Ms. Wright instead advised Mr. Conley
that she had consulted with Windows' Vice President, Steve Woodward, and Owner, Steve
Davidson, and that they had approved his leave request but that his position would have to be filled
during his leave and the position may not be available upon his return from leave. [Filing No. 1
at 5.] Mr. Conley questioned Ms. Wright regarding "why he did not have the certainty of a job
return upon his return from leave," and advised her that he was not resigning. [Filing No. 1 at 5.]
None of Mr. Conley's supervisors, including Ms. Wright or Mr. Woodward, responded to Mr.
Conley's inquiry. [Filing No. 1 at 5.]
Mr. Conley began his leave on October 5, 2018. [Filing No. 1 at 5.] He was not offered
or provided with FMLA leave in connection with his October 4, 2018 leave request and his leave
beginning October 5 was not treated as FMLA leave even though he was eligible to take FMLA
leave to care for his daughter's serious health condition, for her birth, and for bonding purposes.
[Filing No. 1 at 6.] He was not offered or provided with FMLA leave even though Ms. Wright,
Mr. Woodward, and/or Mr. Davidson knew or "had probable cause to know" that Mr. Conley was
requesting FMLA leave to care for his daughter's serious health condition and/or for her birth and
bonding purposes. [Filing No. 1 at 6.]
Mr. Conley was terminated on October 25, 2018. [Filing No. 1 at 6.] His termination
report states that he "was granted unpaid leave until November 20, 2018, but that he was informed
that his position may not be available upon his return from leave," and that his position was filled
and there was not an open position available for him. [Filing No. 1 at 6.] Ms. Wright contends
that she left a voicemail for Mr. Conley to advise him of his termination, but Mr. Conley did not
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learn of his termination until November 20, 2018, when he attempted to return to work. [Filing
No. 1 at 6.]
B.
Conley I
On July 29, 2019, Mr. Conley filed Conley I, in which he alleged claims against Windows 2
for race discrimination under Title VII and 42 U.S.C. § 1981 and retaliation under Title VII related
to his employment at Windows and his subsequent termination. [Filing No. 1 in Conley I.] On
April 13, 2021, the Court granted in part Windows' Motion for Summary Judgment in Conley I as
to Mr. Conley's Title VII and § 1981 race discrimination claims based on certain theories, but
denied the motion in part as to his Title VII and § 1981 race discrimination claims based on
discipline for attendance issues. [Filing No. 66 at 38 in Conley I.] As to that remaining claim, the
Court ordered Mr. Conley to show cause why it should not enter summary judgment in favor of
Windows because Mr. Conley did not suffer an adverse employment action. [Filing No. 66 at 38
in Conley I.] After considering Mr. Conley's response to the Order to Show Cause, the Court
entered summary judgment in favor of Windows on the remaining claim, [Filing No. 71 in Conley
I], and entered final judgment in the case, [Filing No. 72 in Conley I].
C.
Conley II
Meanwhile, Mr. Conley initiated this litigation on October 3, 2020, just a few weeks before
Windows filed its Motion for Summary Judgment in Conley I. [Filing No. 1; Filing No. 49 in
2
Following the parties' lead, the Court referred to Windows as "Davidson Group" in Conley I. The
entity Windows in this case is the same entity as Davidson Group in Conley I.
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Conley I.] In this case, Mr. Conley sets forth claims for FMLA interference against both Windows
and Andersen. 3 [Filing No. 1 at 6-11.]
III.
DISCUSSION
In its Motion to Dismiss, Windows argues that Mr. Conley impermissibly split his claims
between Conley I and Conley II. [Filing No. 12 at 5.] It asserts that Mr. Conley "made the tactical
decision not to pursue FMLA claims against Windows when he filed Conley I in 2019," and
decided "not to amend the pleadings to include FMLA claims in Conley I, and [to] let discovery
end without investigating potential FMLA theories." [Filing No. 12 at 5.] Windows argues that
the discrimination and retaliation claims in Conley I were based on Windows' enforcement of its
attendance policy and Mr. Conley's termination while on a personal leave of absence, and his
FMLA interference claim in this case is based on the same facts. [Filing No. 12 at 6-7.] It notes
"[q]uite simply, without the facts upon which Conley I is based, Mr. Conley would have no
foundation for his FMLA claims in Conley II. It is hard to imagine a more perfect example of the
'same transaction or occurrence' needed for the first element of claim splitting." [Filing No. 12 at
7.] Windows contends that Conley I and Conley II involve the same parties. [Filing No. 12 at 8.]
Windows also argues that there need not be a final judgment in Conley I for claim splitting to
apply. [Filing No. 12 at 8-10.] Finally, Windows asserts that Conley I and Conley II are
"duplicative, parallel actions," and that the Court should dismiss Conley II because it is "a waste
of judicial resources and an improper attempt at double recovery, warranting dismissal." [Filing
No. 12 at 11.]
3
Andersen has not answered or otherwise pled to the Complaint, nor has counsel entered an
appearance on its behalf.
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In his response, Mr. Conley argues that claim splitting is part of the doctrine of res judicata,
and that there must be a final judgment on the merits in Conley I before claim splitting can apply
to preclude a second lawsuit. [Filing No. 15 at 6-9.] He asserts that a case relied upon by Windows
– Rexing Quality Eggs v. Rembrandt Enterprises, Inc., 953 F.3d 998 (7th Cir. 2020) – is inapposite
because the Court had diversity jurisdiction in that case and applied Indiana common law regarding
the doctrine of claim splitting. [Filing No. 15 at 10-11.] Mr. Conley also attempts to distinguish
other cases relied upon by Windows, arguing that they either "reiterate that claim splitting is
viewed through the res judicata prism and can only be dismissed if there is a final judgment on
the merits or do not constitute binding precedent that establishes that this action should be
dismissed on claim splitting grounds." [Filing No. 15 at 12-17.] Additionally, Mr. Conley argues
that, in any event, his two cases do not involve the same transaction or operative facts. [Filing No.
15 at 17-19.] Specifically, he notes that "[t]he gist of [his race discrimination and retaliation
claims] is that [he] experienced racial discrimination with respect to wages and commissions that
he was owed and that, after complaining about these issues, he was retaliated and discriminated
against, including through discipline," whereas his FMLA claims "relate to the failure of
[Windows] to provide him FMLA leave in connection with his October 4, 2018 leave request and
its failure to return him to his former position or a substantially equivalent position upon his return
from leave." [Filing No. 15 at 18.] Mr. Conley contends that "the only overlapping fact between
the claims is that [he] was terminated." [Filing No. 15 at 18.] He argues further that his case
should not be dismissed for reasons of wise judicial administration because Mr. Conley sets forth
different claims in this matter, the relief he seeks in the two cases is different, this lawsuit was
timely filed and was not an attempt to avoid the statute of limitations, and he could be prejudiced
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if this case is dismissed as duplicative because he will not be able to pursue his FMLA claims.
[Filing No. 15 at 19-22.]
In its reply, Windows argues that claim splitting is a procedural rule that is different than
the doctrine of res judicata, and that it does not require a determination on the merits in the earlier
lawsuit. [Filing No. 16 at 3-11.] It reiterates its arguments that Conley II is based on the same
facts as Conley I, and that "reasons of wise judicial economy" provide another ground for
dismissal. [Filing No. 16 at 11-14.]
Mr. Conley focuses primarily on why the doctrine of res judicata, or claim preclusion, does
not apply to bar his claims in this case, but the Court reads Windows' motion to be based upon the
notion of impermissible claim splitting. Another Court within this District has summarized the
doctrine prohibiting claim splitting as follows:
The doctrine of claim-splitting precludes a plaintiff from alleging claims that arise
from the same transaction or events that underlie claims brought in a previous
lawsuit. In this sense, the rule against claim splitting is based on the same principles
as res judicata and bars not only those issues that were actually decided in a prior
lawsuit, but also all issues which could have been raised in that action. Barr v. Bd.
of Trustees of W. Ill. Univ., 796 F.3d 837, 839 (7th Cir. 2015); see also Palka v.
City of Chicago, 662 F.3d 428, 437 (7th Cir. 2011) ("This case is a quintessential
example of claim splitting in duplicative lawsuits, a litigation tactic that [the] res
judicata doctrine is meant to prevent"); Wilson v. City of Chicago, 120 F.3d 681,
687 (7th Cir. 1997) ("Two claims arising from the same facts are one claim for res
judicata purposes, and may not be split…by making each claim the subject of a
separate suit…."). Unlike traditional claim preclusion, however, the bar against
claim splitting can be applied before either action reaches a final judgment on the
merits.
The doctrines of claim splitting and res judicata promote judicial economy and
shield parties from duplicative litigation. Katz v. Gerardi, 655 F.3d 1212, 1218
(10th Cir. 2011). "But claim splitting is more concerned with the district court's
comprehensive management of its docket, whereas res judicata focuses on
protecting the finality of judgments." Id. (citing Wright & Miller, 18A FEDERAL
PRACTICE AND PROCEDURE § 4406).
As alluded to above, "the test for claim splitting is not whether there is finality of
judgment, but whether the first suit, assuming it were final, would preclude the
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second suit." Id. Claim splitting therefore applies if: (1) the second claim is based
on the same transaction or occurrence as the first claim and there is (2) an identity
of parties or their privies. In determining whether the parties have privity, the court
looks to whether the parties share an identity of interest in the subject matter of the
litigation. Huon v. Johnson & Bell, Ltd., 757 F.3d 556, 559 (7th Cir. 2014).
Telamon Corp. v. Charter Oak Fire Ins. Co., 2016 WL 67297, at *2 (S.D. Ind. 2016), aff'd, 850
F.3d 866 (7th Cir. 2017) (certain citations omitted).
In short, the doctrine of claim splitting "prohibits a plaintiff from bringing a new case
raising issues arising out of the same transaction or occurrence as an earlier case, when those issues
could have been raised in the first litigation." Hobbs v. Dart, 2021 WL 1906465, at *3 (N.D. Ill.
2021); see also Shaver v. F.W. Woolworth Co., 840 F.2d 1361, 1365 (7th Cir. 1988) ("[T]he federal
definition of a cause of action, when combined with the rule against claim-splitting, requires that
a plaintiff allege in one proceeding all claims for relief arising out of a single core of operative
facts, or be precluded from pursuing those claims in the future"). Unlike traditional claim
preclusion, the bar against claim splitting can be applied before either action reaches a final
judgment on the merits. McCray v. Wilkie, 2021 WL 977168, at *6 (E.D. Wis. 2021) ("Claim
splitting…applies when the first two elements of claim preclusion are present but final judgment
has not yet been entered in the first suit") (quotation and citation omitted).
Mr. Conley asserts that his claims in Conley I were based on "actions that began in…or
around February 2018 and occurred long before his October 2018 termination," and relate to his
belief that he "experienced racial discrimination with respect to wages and commissions that he
was owed and that, after complaining about these issues, he was retaliated and discriminated
against, including through discipline." [Filing No. 15 at 18.] He argues that, conversely, his claims
in this litigation relate to "the failure of [Windows] to provide him [with] FMLA leave in
connection with his October 4, 2018 leave request and its failure to return him to his former
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position or a substantially equivalent position upon his return from leave." [Filing No. 15 at 18.]
But Mr. Conley's argument misses the mark. Both Conley I and Conley II deal with the same
general facts – Mr. Conley's employment with Windows and his subsequent termination. And
while the specific facts underlying his claims in Conley I may be broader than those which underlie
this litigation, there is a clear overlap as shown in the following table:
Facts Underlying Conley I
Facts Underlying Conley II
Mr. Conley was disciplined for attendance
issues that took place from July 31, 2018 to
October 3, 2018. [Filing No. 66 at 16 in
Conley I.]
On October 4, 2018, Mr. Conley requested
paid time off from October 5, 2018 to
November 1, 2018. His request was denied
because he only had 2 hours and 19 minutes of
paid time off available. He then changed his
request to one for unpaid leave, and changed
the dates of leave from October 5, 2018 to
November 20, 2018, and that request was
granted. [Filing No. 66 at 17-18 in Conley I.]
Ms. Wright informed Mr. Conley that
Windows would have to fill his position while
he was on leave, and that his current position
might not be available upon his return. [Filing
No. 66 at 18 in Conley I.]
Upon taking his leave, Mr. Conley advised Ms.
Wright that he was not resigning. [Filing No.
66 at 18 in Conley I.]
Ms. Wright left Mr. Conley a voicemail on
October 25, 2018 in which she advised him
that his employment was being terminated, but
he did not receive the voicemail and did not
learn of his termination until he emailed Ms.
Wright on November 19, 2018 regarding his
return to work. [Filing No. 66 at 18 in Conley
I.]
Mr. Conley was disciplined for being tardy on
October 1, 2018 and October 3, 2018. [Filing
No. 1 at 3-4.]
Mr. Conley requested leave on October 4,
2018, to last until November 20, 2018. His
request for unpaid leave was eventually
granted. [Filing No. 1 at 4-5.]
Ms. Wright advised Mr. Conley that his
position would have to be filled while he was
on leave, and that his position might not be
available upon his return. [Filing No. 1 at 5.]
Upon taking his leave, Mr. Conley advised Ms.
Wright and Mr. Woodward that he was not
resigning. [Filing No. 1 at 5.]
Ms. Wright contends that she left Mr. Conley
a voicemail on October 25, 2018 advising him
of his termination, but he did not learn of his
termination until November 20, 2018, when he
attempted to return to work. [Filing No. 1 at
6.]
So, while Mr. Conley asserts different claims in Conley I and Conley II, his claims in
Conley II are based on many of the same transactions and occurrences which underlie Conley I.
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Further, there is no dispute that Mr. Conley and Windows are involved in both Conley I and Conley
II. In short, this is a classic example of impermissible claim splitting. See Palka, 662 F.3d at 437.
Accordingly, the Court GRANTS Windows' Motion to Dismiss, [Filing No. 11], based on the
doctrine of claim splitting. 4
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Windows' Motion to Dismiss, [11], and
DISMISSES Mr. Conley's claims against Windows WITH PREJUDICE. 5 No partial final
judgment shall enter at this time.
Date: 6/3/2021
Distribution via ECF only to all counsel of record
4
The Court need not discuss Windows' additional argument that this case should be dismissed "for
reasons of wise judicial administration." [Filing No. 12 at 11.] The Court also need not address
the parties' difference of opinion regarding whether a final judgment in Conley I is needed for the
doctrine of res judicata to apply, although it notes that final judgment in Conley I was entered after
the pending motion was fully briefed, [Filing No. 72 in Conley I], making that issue moot in any
event.
5
Because Mr. Conley cannot amend his Complaint to remedy the fact that he engaged in improper
claim splitting, dismissal with prejudice is appropriate. Bogie v. Rosenberg, 705 F.3d 603, 608
(7th Cir. 2013) (dismissal with prejudice is proper "if it is clear that any amendment would be
futile").
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