Easterling v. Cassanos Inc et al
ENTRY AND ORDER ADOPTING IN PART AND OVERRULING IN PART REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE MICHAEL J. NEWMAN 19 , OVERRULING PLAINTIFF'S OBJECTIONS 20 , GRANTING DEFENDANTS' OBJECTIONS 21 , GRANTING DEFENDANTS' MOTION TO DISMISS 12 AND TERMINATING CASE. Signed by Judge Thomas M. Rose on 5/1/2017. (de)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Warren Easterling, r
Case No. 3:16-cv-340
Judge Thomas M. Rose
Cassano’s Inc., et al.,
ENTRY AND ORDER ADOPTING IN PART AND OVERRULING IN
PART REPORT AND RECOMMENDATIONS OF MAGISTRATE
JUDGE MICHAEL J. NEWMAN (ECF 19), OVERRULING
PLAINTIFF’S OBJECTIONS (ECF 20), GRANTING DEFENDANTS’
OBJECTIONS (ECF 21), GRANTING DEFENDANTS’ MOTION TO
DISMISS (ECF 12 ) AND TERMINATING CASE.
This case is before the Court on Defendants’ Motion to Dismiss for Failure to State a Claim
(ECF 12), Report and Recommendations of February 1, 2017 (ECF 19) and Objections to the
Report and Recommendations by all parties. (ECF 20 & 21).
Federal Rule of Civil Procedure 12(b)(6) provides that a party may present by motion a
defense that a particular claim for relief fails to state a claim upon which relief may be granted.
“To survive a motion to dismiss, a complaint must contain 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 Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 570 (2007)). “[T]he tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions,” so “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombley, 550 U.S. at 555). “[T]he Federal
Rules do not require courts to credit a complaint's conclusory statements without reference to its
factual context.” Id. at 1954. “And Rule 8 does not empower [a plaintiff] to plead the bare
elements of his cause of action, affix the label ‘general allegation,’ and expect his complaint to
survive a motion to dismiss.” Id. In the end, determining whether a complaint states “a plausible
claim for relief” is “a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950 (citation omitted).
The Court is required by 28 U.S.C. ' 636(b) and Federal Rule of Civil Procedure 72(b), to
make a de novo review of the record when reviewing a dispositive motion.
On January 28, 2015, pro se Plaintiff Warren Easterling filed a complaint in Easterling v.
Cassano’s, 3:15-cv-032 (S.D. Ohio)(Rose, J), that stated one compound claim against defendants
that are also named in this case, Cassano's Inc., Ron Moon and Kiella Yarber:
VIOLATION TITLE 42 U.S.C. 1985 - DEPRIVING, BY
CONSPIRACY OR NOT, CITIZENS OF RIGHTS OR
PRIVILEGES GRANTED TO ALL CITIZENS BY WAY OF A
WRONGFUL TERMINATION AND A CONSTRUCTIVE
VIOLATION OF TITLE 42 U.S.C 1985 - DEPRIVING BY
CONSPIRACY RIGHTS GRANTED TO ALL CITIZENS
TRIGGERED BY THE VIOLATION OF 4112.02 OF THE OHIO
REVISED CODE (UNLAWFUL DISCRIMINATION).
3:15-cv-032, Complaint at 5. Defendants’ Motion to Dismiss, (3:15-cv-32, ECF 9), was granted,
the case dismissed, and multiple motions for relief from judgment (3:15-cv-32, Docs., 19, 22, 27
and 29) were filed and denied.
In Plaintiff’s current action, filed August 11, 2016, Easterling names as Defendants
Cassano’s, their District Manager Ron Moon, Shift Manager Kiella Yarber, and Store Manager
Brad Williams now alleging racial discrimination under Title VII, this time under 42 U.S.C. §
2000e-2. Easterling also adds an allegation that Defendants denied him one or more promotions
on account of his race. Id. at PageID 5.
Easterling, an African-American male, was employed at Cassano’s West Third Street
location in Dayton for approximately six months from June 13, 2014 until his termination on
January 25, 2015. ECF. 1 at PageID 4. Moon allegedly fired Easterling when he arrived for his
shift on January 25, 2015. Id. at PageID 4. Moon and Yarber informed Easterling that his
termination was the result of him calling Yarber a racist. Id. Easterling denies having ever called
Yarber a racist, and alleges that he was terminated from his employment solely because of his race.
Id. at PageID 4, 6. This incident resulted in police being called to escort Plaintiff from Cassano’s
premises and the entry of a Notice of Criminal Trespass. (See 3:15-cv-032, ECF. 1, PageID 10).
Defendants filed a motion to dismiss based on res judicata. (ECF 12).
“Res judicata is often analyzed…to consist of two preclusion concepts: ‘issue preclusion’
and ‘claim preclusion.’” Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006).
As early as 1997 the Sixth Circuit bemoaned adhesion to Supreme Court teachings on this topic
from the 1980s:
[I]t might be useful, in view of the perennial confusion over the
vocabulary and concepts of the law of preclusion, to restate the
The Supreme Court has noted:
[t]he preclusive effects of former
adjudication are discussed in varying and, at times,
seemingly conflicting terminology, attributable to
the evolution of preclusion concepts over the years.
These effects are referred to collectively by most
commentators as the doctrine of “res judicata.” Res
judicata is often analyzed further to consist of two
preclusion concepts: “issue preclusion” and “claim
preclusion.” Issue preclusion refers to the effect of
a judgment in foreclosing relitigation of a matter that
has been litigated and decided. This effect also is
referred to as direct or collateral estoppel. Claim
preclusion refers to the effect of a judgment in
foreclosing litigation of a matter that never has been
litigated, because of a determination that it should
have been advanced in an earlier suit. Claim
preclusion therefore encompasses the law of merger
Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1
(1984) (citations omitted).
Some commentators and court
decisions have used the term “res judicata” as being “virtually
synonymous with ‘claim preclusion.’” Ibid.
In the proceedings attendant to these appeals, the
parties and the district court appear to have adopted
the position that “res judicata” is synonymous with
“claim preclusion” and “collateral estoppel” is
synonymous with “issue preclusion.” At this stage
of the litigation, we will not disturb this usage
although we will, during the course of our discussion
of the legal issues, use the terms “claim preclusion”
and “issue preclusion.” We also express our hope
that future litigants, in the interests of precision and
clarity, will formulate arguments which refer solely
to issue or claim preclusion and which refrain from
using the predecessors of those terms, whose
meanings have become so convoluted.
Barnes v. McDowell, 848 F.2d 725, 728 n. 5 (6th Cir. 1988).
The hope we expressed in Barnes was not realized in the
arguments of the present parties, nor in the decision of the district
court. We can only express the hope again.
Heyliger v. State Univ. & Cmty. Coll. Sys. of Tennessee, 126 F.3d 849, 852 (6th Cir. 1997).
The confusion persists even in the Sixth Circuit, which has more recently informed, “The
doctrine of res judicata prohibits not only re-litigation of all claims or issues which were actually
litigated, but also those which could have been litigated in a prior action.” Bragg v. Flint Bd. of
Educ., 570 F.3d 775, 777 (6th Cir. 2009). The branch of res judicata relevant in this case is claim
“Under the doctrine of claim preclusion, a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that were or could have been raised in
that action.” Rivet v. Regions Bank of La., 522 U.S. 470, 476 (1998)(brackets and internal
quotation marks omitted)(emphasis added). Claim preclusion applies when (1) there is a final
decision on the merits in the first action by a court of competent jurisdiction; (2) the second action
involves the same parties, or their privies, as the first; (3) the second action raises an issue actually
litigated or which should have been litigated in the first action; and (4) there is an identity of
claims between the first and second actions. Sanders Confectionery Prods., Inc. v. Heller Fin. Inc.,
973 F.2d 474, 480 (6th Cir. 1992)(emphasis added).
With this in mind, the Court observes that the Magistrate correctly analyzes Plaintiff’s
termination claim in its entirety and Plaintiff’s discrimination claim up to the last step of the
analysis, applying a test from the wrong branch of the res judicata:
First, contrary to Easterling’s assertion, the dismissal of his
previous federal case for failure to state a claim constitutes a valid
decision on the merits. See Wilkins v. Jakeway, 183 F.3d 528,
532-33 (6th Cir. 2003) (finding that a dismissal for failure to state a
claim is a dismissal on the merits); see also Fed. R. Civ. P. 41(b)
(stating that, unless otherwise stated by the court in the dismissal
order, “a dismissal under [Rule 41(b)] and any dismissal not under
[Rule 41] . . . operates as an adjudication on the merits”).
Second, with regard to “privity,” the Court notes that
Cassano’s, Moon, and Yarber were all parties to the previous
lawsuit and, thus, no question of privity exists as to them. See
Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 766 (6th Cir. 2015).
While Williams was not named in the first action, his addition as a
Defendant in this case––insofar as he is added with regard to
Easterling’s claims based upon his termination––does not preclude
application of res judicata because, as an employee of Cassano’s, he
is in privity with Cassano’s, Moon and Yarber. Cf. Jackson v. Pline,
No. 92-1172, 1992 WL 203760, at * 1 (6th Cir. Aug. 20, 1992); LG
Sciences, LLC. V. Putz, 511 F. App’x 516, 518 (6th Cir. 2013)
(finding that a federal government employee was in privity with
their federal government employer); Perry v. Croucher, No. 973033, 1998 WL 661151, at *6 n.13 (6th Cir. Aug. 31, 1998) (finding
privity satisfied between co-workers); McCoy v. State of Mich., No.
08-1641, 2008 U.S. App. LEXIS 28032, at *3–4 (6th Cir. Nov. 18,
2008) (noting the existence of privity between an employer and its
employees for purposes of res judicata).
Finally, the third and fourth elements required to apply the
doctrine of res judicata exist with regard to Easterling’s
discrimination claims arising from his termination. Easterling’s
factual averments in this regard repeat the same factual allegations
as his first complaint almost verbatim. See ECF 1 at PageID 4, 6-7;
see also Easterling, No. 3:15-cv-32 (S.D. Ohio Jan. 28, 2015), ECF
No. 1. Therefore, Easterling’s discrimination claims related to his
termination arise out of the exact same transaction and either were,
or should have been, asserted in the previous lawsuit. See Wheeler,
807 F.3d at 766. Accordingly, such claims should be dismissed as
barred by res judicata.
As noted above, however, Easterling now asserts a
discrimination claim based upon an alleged failure to promote him
in 2014. See ECF 1 at PageID 5. Such claim, and the facts
underlying it, were not asserted in Easterling’s previous case. See
Easterling, No. 3:15-cv-32 (S.D. Ohio Jan. 28, 2015), ECF No. 1.
Easterling could and should have brought his discrimination claim in the prior action,
however. “A final judgment on the merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that action.” Federated Dep't Stores, Inc.
v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (emphasis added). That
seven months transpired between what Easterling describes as a failure to promote him and his
termination does not mean that Easterling could not or should not have asserted these two claimsin
one action. See Smith v. CNA Fin. Corp., No. 10 C 4505, 2011 WL 1557871, at *5 (N.D. Ill. Apr.
25, 2011)(“[T]wo claims are one for purposes of res judicata if they are based on the same, or
nearly the same, factual allegations…Smith's…claims stem from the same set of operative
facts—CNA's decision not to promote Smith and then to terminate her six months later.” (internal
citations omitted)). This Court sees failure to promote and termination claims combined on a
The purpose of claim preclusion “is to promote the finality of judgments and thereby
increase certainty, discourage multiple litigation, and conserve judicial resources.” Westwood
Chem. Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.1981). The purpose of the doctrine is
Because Plaintiff could have brought his failure to promote claim in a previous action,
Defendant’s Objection to the Report and Recommendation, (ECF 21), is GRANTED. Having
made a de novo review of the record in this case, as required by 28 U.S.C. ' 636(b) and Federal
Rule of Civil Procedure 72(b), and taking into consideration Plaintiff’s objections, Report and
Recommendations of February 1, 2017, (ECF 19), is ADOPTED in so far as it recommends
denying Plaintiffs Objections to the Report and Recommendations, (ECF 20), the Report and
Recommendation is REJECTED in so far as it recommends denying Defendants’ objections.
Plaintiffs Objection to the Report and Recommendation, (ECF 20), is OVERRULED.
Defendant’s Motion to Dismiss for Failure to State a Claim, (ECF 12), is GRANTED.
The Clerk is ORDERED to TERMINATE the instant case from the dockets of the Southern
District of Ohio, Western District at Dayton.
DONE and ORDERED in Dayton, Ohio, on Monday, May 1, 2017.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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