United States District Court, D. Connecticut
RULING RE: MOTIONS TO DISMISS (Doc. Nos 11 and
C. Hall United States District Judge
plaintiff, Sgt. Jason Koenig (“Koenig”), brings
this employment discrimination and retaliation action against
the defendants, the City of New Haven (“the
City”) and New Haven Police Chief Dean Esserman
(“Esserman”). See Compl. (Doc. No. 1).
This is Koenig's second lawsuit in this court against
these defendants. See id. ¶ 24; Koenig v.
City of New Haven, 3:13-cv-1870 (JCH). The defendants
have moved to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted. See First Mot. to Dismiss (Doc. No. 11);
Second Mot. to Dismiss (Doc. No. 26).
One of Koenig's Complaint alleges that the City
discriminated against Koenig in violation of the Americans
with Disabilities Act (ADA). See Compl. Count One
¶ 40. Count Two alleges that the City retaliated against
him in violation of the ADA. See id. Count Two
¶¶ 40-41. Count Three alleges that the City
retaliated against him in violation of the Rehabilitation
Act. See id. Count Three ¶¶ 41-42. Count
Four alleges that the City violated the Connecticut Fair
Employment Practices Act (CFEPA). See Id. Count Four
¶ 40. The court construes Count Four broadly to
encompass both a CFEPA discrimination claim and a CFEPA
retaliation claim. Count Five alleges that Esserman, acting
in his individual capacity, retaliated against Koenig and
discriminated against Koenig based on Koenig's disability
or perceived disability, in violation of Koenig's
Constitutional right to equal protection. See id.
Count Five ¶¶ 40-41. Count Six alleges that
Esserman intentionally inflicted emotional distress on
Koenig. See id. Count six ¶ 43.
Second Motion to Dismiss argues that all Koenig's claims
are barred by res judicata and collateral estoppel.
See Second Mot. to Dismiss at 1. The First Motion to
Dismiss argues that Koenig fails to state a claim upon which
relief can be granted because (1) he was never rejected for a
promotion, see Mot. to Dismiss at 9-10; (2) the
equal protection clause is inapplicable to Koenig's
claims, see id. at 19-21; and (3) any claims against
Esserman in his official or individual capacity are barred,
see id. at 2, 22.
reasons that follow, the defendants' Second Motion to
Dismiss (Doc. No. 26) is DENIED and the
defendants' First Motion to Dismiss (Doc. No. 11) is
GRANTED. However, Koenig is granted leave to
re-plead his Complaint within 14 days, so as to allege
works as a police officer in the City's Department of
Police Services. See Compl. ¶ 1. The City is an
employer with more than 100 employees. See id.
¶ 7. Koenig's work has always been excellent.
See id. ¶ 13.
was diagnosed with permanent injuries to his back, shoulder,
and neck. See id. ¶ 14. Specifically, on
February 23, 2005, Koenig was diagnosed with permanent
impairment to his left shoulder. See id. ¶ 16.
On approximately March 1, 2009, Koenig was diagnosed with
lumbar spondylosis and lumbar degenerative disc disease.
See id. ¶ 15. On September 21, 2012,
Koenig's shoulder injury worsened, and on December 6,
2012, his back injury worsened. See id. ¶¶
15-16. On approximately February 25, 2013, Koenig was
diagnosed with a permanent impairment to his cervical spine.
See id. ¶ 17. Koenig suffers from a reduced
range of motion, weakness, stiffness, pain, and difficulty
bending, sitting, flexing, and extending. See Id.
¶ 18. The City participated in processes that involved
assessing the severity of Koenig's injuries. See
id. ¶ 20.
November 2012, Koenig filed an Affidavit of Illegal
Discriminatory Practice against the City with the CHRO and
the Equal Employment Opportunity Commission, alleging
discrimination based on his disability. See id.
¶¶ 21-22. Koenig alleged that the City and Esserman
discriminated against him by subjecting him to a medical
evaluation and holding a “counseling session” for
him. See id. ¶ 23.
September 2013, Koenig took and passed an examination for
eligibility to become a lieutenant. See id. ¶
25. Koenig did not receive a promotion to Lieutenant,
however. See id. ¶ 33. Koenig was ranked
eighteen out of the officers who passed the examination.
See id. ¶ 25. The City initially interviewed
candidates ranked one through seventeen, stopping right
before Koenig. See id. ¶ 26. The City then
promoted candidates one through twelve. See id.
¶ 27. On a second round of interviews, the City again
stopped interviewing at candidate number seventeen, right
before Koenig. See id. ¶ 29.
December 5, 2014, Koenig was the sixth remaining candidate on
the ranked list of officers who had passed the
lieutenant's examination but had not yet been promoted.
See id ¶ 30. The City had six open positions at
this time, but chose to fill only four of its remaining
positions. See id. ¶ 32. Koenig thus did not
receive a promotion. See id. ¶ 32.
March 31, 2016, Koenig filed this lawsuit. As of the time
Koenig filed this lawsuit, sufficient lieutenant positions
were available to promote every candidate on the list
(including Koenig), but Koenig had not been promoted. See
id. ¶ 34.
STANDARD OF REVIEW
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must determine whether the plaintiff has stated a
legally cognizable claim by making allegations that, if true,
would show that the plaintiff is entitled to relief. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)
(interpreting Rule 12(b)(6), in accordance with Rule
8(a)(2), to require allegations with “enough heft to
‘sho[w] that the pleader is entitled to
relief'”). The court takes all factual allegations
in the complaint as true and draws all reasonable inferences
in the plaintiff's favor. See Crawford v. Cuomo,
796 F.3d 252, 256 (2d Cir. 2015). However, the tenet that a
court must accept a complaint's allegations as true is
inapplicable to “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 555).
survive a motion pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (2009)
(quoting Twombly, 550 U.S. at 556).
Second Motion to Dismiss
defendants argue that Koenig's claims are barred by res
judicata. See Second Mot. to Dismiss at 1.
“'The doctrine of res judicata, or claim
preclusion, holds that 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.'” ATSI Communications,
Inc. v. Shaar Fund, Ltd, 547 F.3d 109, 112 n.2 (2d Cir.
2008) (quoting Monahan v. N.Y. City Dep't of
Corr., 214 F.3d 275, 284 (2d Cir. 2000)). As the Supreme
Court has explained, “[u]nder the doctrine of claim
preclusion, a final judgment forecloses successive litigation
of the very same claim, whether or not relitigation of the
claim raises the same issues as the earlier suit.”
Taylor v. Sturgell, 553 U.S. 880, 892 (2008)
(internal quotation marks omitted). In 2000, the Second
Circuit stated that claim preclusion applies if “(1)
the previous action involved an adjudication on the merits;
(2) the previous action involved the [same parties] or those
in privity with them; [and] (3) the claims asserted in the
subsequent action were, or could have been raised in the
prior action.” Monahan, 214 F.3d at 285;
see also Staten v. City of N.Y., 653 F. App'x
78, 79 (2d Cir. 2016).
doctrine of claim preclusion proscribes “every matter
that was offered and received to sustain or defeat a cause of
action, as well as to any other matter that the parties had a
full and fair opportunity to offer for that purpose.”
NML Capital, Ltd. v. Banco Cent. de la Republica
Argentina, 652 F.3d 172, 184 (2d Cir. 2011) (internal
quotation marks omitted). Claim preclusion thus “bars
‘claims that might have been raised in the prior
litigation but were not.'” Staten, 653 F.
App'x at 79 (quoting Marcel Fashions Grp., Inc. v.
Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir.
2015)). To determine whether the claims could have been
raised in the prior action, the court should consider factors
including, “whether the same transaction of series of
transactions is at issue, whether the same evidence is needed
to support both claims, and whether the facts essential to
the second were present in the first.”
Monahan, 214 F.3d at 285.
an adjudication on the merits occurred in the First Lawsuit.
See Koenig v. City of New Haven, 2016 U.S. Dist.
LEXIS 156873 (D. Conn. Nov. 10, 2016) (ruling on Motion for
Summary Judgment). The First Lawsuit involved the same
parties: Koenig initially sued both the City and Esserman,
see Compl. in First Lawsuit (Case No. 13-cv-1870,
Doc. No. 1), although the court dismissed all claims against
Esserman, see Koenig v. City of New Haven, No.
3:13-CV-1870 (JCH), 2015 WL 5797011, at *1 n.1 (D. Conn. Oct.
1, 2015). The court thus must determine whether the claims
asserted here were, or could have been, raised in the First
First Lawsuit, Koenig raised almost every type of claim that
he now raises. Specifically, in the First Lawsuit, Koenig
raised claims of (1) disability discrimination in violation
of the ADA, see Compl. in First Lawsuit Count Two,
(2) retaliation in violation of the ADA, see Koenig,
2016 U.S. Dist. LEXIS 156873 at *10 n.4. (construing claim),
(3) a CFEPA violation, see Compl. in First Lawsuit
Count Five, (4) an equal protection violation by Esserman,
see id. Count Six, and (5) intentional infliction of
emotional distress by Esserman, see id. Count Seven.
The only type of claim Koenig raises now that he did not
raise in the First Lawsuit is a claim of retaliation in
violation of the Rehabilitation Act. However, the First
Lawsuit did include claims of retaliation, see
Koenig, 2016 U.S. Dist. LEXIS 156873 at *10 n.4.; Compl.
in First Lawsuit Count Six, and a claim of discrimination in
violation of the Rehabilitation Act, see Compl. in
First Lawsuit Count Three.
the fact that Koenig already raised in the First Lawsuit
almost every type of claim that he now raises, the claims in
the First Lawsuit were predicated on the fact that the City
suspended Koenig, see Koenig, 2016 U.S. Dist. LEXIS
156873 at *16, whereas the claims in this lawsuit are
predicated on the fact that the City has not promoted Koenig,
see Compl. ¶ 33. The court thus concludes that
“the same transaction or series of transactions”
is not “at issue” here as was at issue in the
First Lawsuit. Monahan, 214 F.3d at 285.
“[R]es judicata has very little applicability to a fact
situation involving a continuing series of acts, for
generally each act gives rise to a new cause of
action.” Proctor v. LeClaire, 715 F.3d 402,
412 (2d Cir. 2013).
true that factual overlap exists between the two lawsuits.
Both lawsuits involve Koenig's employment as a police
officer in the City of New Haven. In support of his claims in
the First Lawsuit, Koenig submitted to the court a copy of
his February 2015 Connecticut Commission on Human Rights and
Opportunities (“CHRO”) Affidavit of Illegal
Discriminatory Practice, which included a complaint that
Koenig had not received a promotion to Lieutenant. See
Koenig, 2016 U.S. Dist. LEXIS 156873 at *7. Both (1) the
February 2015 CHRO Affidavit (Case No. 13-cv-1870, Doc. No.
63-3), which Koenig submitted as evidence in the First
Lawsuit, and (2) the Complaint in this lawsuit, recount the
same facts regarding the alleged failure to
promote. The First Lawsuit centered on the
City's reaction to an inappropriate comment that Koenig
allegedly made, regarding the topic of promotions.
See Investigation Rep. in First Lawsuit (Case No.
13-cv-1870, in Doc. No. 77-3 at 5-9) (describing
inappropriate comment as comment regarding what an employee
such as Koenig must do or be, to receive a promotion).
while some of “the same evidence is needed to support
both” the claims in the First Lawsuit and the claims in
this lawsuit, additional evidence also is needed to support
the claims in this lawsuit, and “the facts essential to
the” current claims were not “present in
the” First Lawsuit. Monahan, 214 F.3d at 285.
Specifically, the claims in this lawsuit will require Koenig
to put forth evidence to show that the City in fact failed to
promote him, as well as why the City failed promote him. The
claims in the First Lawsuit, however, would not necessarily
have required Koenig to put forth evidence to show that the
City failed to promote him, or why. While evidence that the
City failed to promote Koenig due to discrimination
theoretically could have helped to show pretext in the First