15‐3365
Mary E. Robinson v. Purcell Constr. Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 25th day of April, two thousand sixteen.
PRESENT: RALPH K. WINTER,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
______________________
MARY E. ROBINSON,
Plaintiff‐Appellant,
‐v.‐ No. 15‐3365
PURCELL CONSTRUCTION
CORPORATION,
Defendant‐Appellee.
______________________
FOR PLAINTIFF‐APPELLANT: A.J. BOSMAN, Bosman Law Firm,
L.L.C, Canastota, NY.
FOR DEFENDANT‐APPELLEE: THOMAS M. MEALIFFE (Joseph J.
Ortego, Juan Luis Garcia, on the brief),
Nixon Peabody LLP, Jericho, NY.
Appeal from the United States District Court for the Northern District of
New York (Suddaby, C.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
Plaintiff Mary E. Robinson (“Plaintiff”) appeals a decision of the United
States District Court for the Northern District of New York (Suddaby, C.J.)
dismissing her amended complaint alleging employment discrimination and
retaliation claims against Defendant Purcell Construction Company
(“Defendant”). Plaintiff’s claims arise from the August 1, 2008 termination of her
employment by Defendant.1
A claim may be barred by res judicata if (1) the prior action involves a
judgment on the merits; (2) whether the prior action involves the same parties or
those in privity; and (3) whether the claims asserted in the action were, or could
1 We review de novo the dismissal of a plaintiff’s claims based upon res judicata
principles. EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007).
We assume the parties’ familiarity with the facts and record below, which we reference
only as necessary to explain our decision.
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have been, asserted in the prior action. Monahan v. New York City Dep’t of Corr.,
214 F.3d 275, 285 (2d Cir. 2000). The third element is further analyzed under the
“transactional test” of the Restatement (Second) of Judgments, which applies
three inquiries: (1) whether the underlying facts are “related in time, space,
origin, or motivation;” (2) whether the underlying facts “form a convenient trial
unit;” and (3) whether their “treatment as a unit conforms to the parties’
expectations.” Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 280 (2d Cir. 2008);
Restatement (Second) of Judgments § 24(2) (1982).
“[W]hen a plaintiff’s motion to amend the complaint is denied and the
plaintiff subsequently brings the amendments as a separate lawsuit, ‘it is not the
actual decision to deny leave to amend that forms the basis of the bar . . . . In
fact, the actual decision denying leave to amend is irrelevant to the claim
preclusion analysis.’” Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000)
(quoting Northern Assur. Co. of America v. Square D. Co., 201 F.3d 84, 88 (2d Cir.
2000)). Regardless of whether a plaintiff attempts to bring the additional claims
in an initial suit, and regardless of whether plaintiff meets with success in that
attempt, the res judicata bar “is based on the requirement that the plaintiff must
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bring all claims at once against the same defendant relating to the same
transaction or event.” Northern Assur. Co., 201 F.3d at 88.
Plaintiff argues here that the District Court should not have ruled that res
judicata bars her retaliation claims of failure to rehire in the instant case because
these acts constituted a distinct and different transaction from that at issue in the
previous litigation. Plaintiff argues that in her earlier action, “the transaction and
occurrence at issue was Plaintiff’s treatment and separation from employment on
a particular day in August 2008, whereas the transaction and occurrence in the
instant action involves conduct that occurred weeks or months later.”
Appellant’s Br. 14–15 (internal quotation marks omitted)). Plaintiff adds that it is
“unfair” to bar her claims because “prior to the trial testimony given by
Defendant’s officers, Plaintiff did not suspect or allege that the reason she was
not ‘returned’ was due to her filing a complaint” with the New York State
Division of Human Rights. Appellant’s Br. 18.
There is no dispute that there has already been a final judgment on the
merits regarding claims asserted against Defendant related to Plaintiff’s 2008
termination, and thus the first two elements of claim preclusion are clearly met.
With respect to the third element, Defendant persuasively argues that “Plaintiff’s
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claims, on their face, reveal that they were or could have been asserted in the
[earlier action] because they are based on the very same occurrences—her
termination—and non‐occurrences—her continued separation from
employment—that were tried before a jury in the [earlier action].” Appellee’s Br.
25.
We agree with Defendant that Plaintiff’s separation from employment on
August 1, 2008 “is the key factual component of her present claims.” Appellee’s
Br. 25. Although Defendant’s senior officers’ testimony may not have been
available to Plaintiff until the time of trial in February 2013, this testimony
related to the same “transaction and occurrence” that was fully litigated in that
trial, i.e., Plaintiff’s termination in August 2008. As of August 2008, Plaintiff’s
understanding was that her termination by Defendant was “permanent.”2
Regardless of whether her discharge is called a layoff, termination, firing, or
failure to rehire, the fact remains that the circumstances surrounding Plaintiff’s
2 Not only did Plaintiff plead and then testify to this at the February 2013 trial, but she
may never have survived summary judgment on her initial discrimination and
retaliation claims had she accepted that her termination was merely a seasonal layoff or
regular reduction in workforce.
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termination in August 2008 were fully adjudicated in a seven‐day trial in
February 2013.3 She is thus barred from bringing those claims again.
Our analysis is no different simply because the District Court denied
Plaintiff’s motion to amend to conform the pleadings to the proof, nor is it
different because a panel of this Court previously suggested that Plaintiff’s
present failure‐to‐rehire theory was “in considerable tension with” her theory
that she had been terminated rather than laid off. Robinson v. Dibble, 613 F. App’x
9, 13 (2d Cir. 2015) (summary order). Whether Plaintiff attempted to (or
succeeded at) amending her complaint has no bearing on whether the claims she
desired to amend arose from the same transaction or occurrence as those already
litigated and decided. Similarly, Plaintiff’s complaint that it is “unfair” to not
allow her to bring these claims is unavailing because the application of res
judicata is not subject to equitable considerations. See Federated Dep’t Stores, Inc.
v. Moitie, 452 U.S. 394, 401 (1981).
3 Plaintiff concedes that “[i]t does not matter whether her discharge is called a lay‐off,
termination, firing, permanent lay‐off, failure to rehire, or banishment.” Reply Br. 10.
She then argues that “[w]hat matters is what motivated the permanent end to Plaintiff’s
work.” Reply Br. 10. But this is precisely what was already litigated and adjudicated at
trial in February 2013. As the District Court observed, “based on the facts [Plaintiff]
knew before trial, or the facts that she reasonably should have known before trial, she
could have pled the claim . . . that she was laid off and not recalled as a result of
complaining of discrimination in the alternative to her claim that she was fired on August
1, 2008, for complaining of discrimination.” Special App’x 11.
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We have considered all of Plaintiff’s remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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