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Koenig v. City of New Haven

United States District Court, D. Connecticut

February 15, 2017

JASON KOENIG, Plaintiff,
v.
CITY OF NEW HAVEN et al., Defendants.

          RULING RE: MOTIONS TO DISMISS (Doc. Nos 11 and 26)

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         The 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).

         Count 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.

         The 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.

         For the 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 additional facts.

          II. FACTS[1]

         Koenig 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.

         Koenig 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.

         In 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.

         In 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.

         On 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.

         On 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.

         III. STANDARD OF REVIEW

         When 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).

         To 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).

         IV. DISCUSSION

         A. Second Motion to Dismiss

          1. Res Judicata

          The 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).

         The 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.

         Here, 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 Lawsuit.

         In the 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.

         Despite 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).

         It is 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.[2] 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).

         However, 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 ...


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