17‐52‐cv
Soules v. Connecticut
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
No. 17‐52‐cv
GARY SOULES,
Plaintiff‐Appellant,
v.
STATE OF CONNECTICUT, DEPARTMENT OF EMERGENCY
SERVICES AND PUBLIC PROTECTION, STATE OF CONNECTICUT,
AND TOWN OF OXFORD,
Defendants‐Appellees.
ARGUED: DECEMBER 1, 2017
DECIDED: FEBRUARY 8, 2018
Before: JACOBS, RAGGI, and DRONEY, Circuit Judges.
Gary Soules appeals from the judgment of the United States District Court
for the District of Connecticut (Bryant, J.) dismissing his complaint sua sponte on
the ground of res judicata. Soules’ first action alleged harassment,
discrimination, and retaliation by defendants on the basis of his disabilities,
military status, and certain protected activities. After dismissal, Soules brought
this second action alleging a nearly identical set of facts and claims, adding a
single further allegation: that defendants terminated his employment in
retaliation for filing the first action.
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We conclude that Soules effectively amended his complaint via the motion
papers in the first action to add a retaliatory termination claim. Accordingly,
Soules could have raised his termination claim in the first action and did, and
thus res judicata precludes Soules from litigating the claim in this subsequent
case. We also reject Soules’ argument that the requirement to exhaust
administrative remedies prevented him from raising the termination claim in the
first action; the claim was “reasonably related” to the original administrative
charge, and therefore Soules would not have been barred from bringing the
claim in the first action. Furthermore, res judicata applies to claims pending
review in administrative proceedings. The requirement to exhaust
administrative remedies therefore does not alter our conclusion that res judicata
precludes the second action. Affirmed.
WILLIAM S. PALMIERI, New Haven,
Connecticut, for Plaintiff‐Appellant.
JAMES N. TALLBERG (Dennis M. Durao, on
the brief), Karsten & Tallberg, LLC, Rocky
Hill, Connecticut, for Defendant‐Appellee
Town of Oxford.
COLLEEN B. VALENTINE, Assistant Attorney
General (Ann E. Lynch, Assistant Attorney
General, on the brief), Hartford, Connecticut,
for George Jepsen, Attorney General of the
State of Connecticut, for Defendants‐
Appellees State of Connecticut, Department of
Emergency and Services and Public Protection,
State of Connecticut.
DENNIS JACOBS, Circuit Judge:
Gary Soules appeals from the judgment of the United States District Court
for the District of Connecticut (Bryant, J.) dismissing his complaint sua sponte on
the ground of res judicata. Soules’ first lawsuit was dismissed. See Soules v.
2
Connecticut, No. 3:14‐CV‐1045 (VLB), 2015 WL 5797014 (D. Conn. Sept. 30, 2015)
(“Soules I”). The dismissal was affirmed in part and vacated in part (on grounds
not relevant to this appeal) by summary order. See Soules v. Town of Oxford,
669 F. App’x 54 (2d Cir. 2016). Soules brought the present case after the
dismissal of the first case, alleging nearly identical claims with a single additional
one: that defendants terminated his employment in retaliation for filing Soules I
(the “termination claim”).
On appeal, Soules argues that res judicata does not bar his termination
claim because the termination happened after he filed the complaint in Soules I.
However, Soules was fired while the motions to dismiss were pending and he
repeatedly raised the termination issue as evidence that his claims were
sufficiently pleaded. These filings indicate that Soules implicitly sought to
amend his pleadings, and that the district court in effect permitted him to do so.
Accordingly, we conclude that the termination claim could have been raised in
the prior action and was, and that res judicata precludes Soules from asserting
the claim in this subsequent action.
Soules also argues that he could not have asserted claims based on his
termination because he was required to exhaust administrative remedies.
However, the termination claim was “reasonably related” to the original
administrative charge; so the exhaustion requirement would not have foreclosed
raising the claim added in Soules I. In any event, the res judicata doctrine
applies in administrative proceedings. The requirement to exhaust
administrative remedies thus does not disturb our holding that the termination
claim is barred by res judicata.
BACKGROUND
Soules, who is assumed to suffer from post‐traumatic stress disorder,
alleges that, while he was a police officer in the Town of Oxford, he was
“subjected to an ongoing pattern of harassment, discrimination, retaliation and
disparate treatment based upon his [mental and physical] disabilities or
perceived disabilities, his military service and in retaliation for his protected
complaints.” Joint App’x 40, 42 (Am. Compl. ¶¶ 2, 17). Soules’ supervisor,
Sergeant Daniel Semosky, allegedly swore at Soules and said he was “unhappy”
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with Soules’ return to work after a combat tour; and employees of the Town of
Oxford and State Police allegedly physically intimidated him. Id. at 43–44 (Am.
Compl. ¶¶ 23–25). Soules protested in writing to the Department of Emergency
Services and Public Protection (“DESPP”), and made that grievance known to
other officers.
The complaint alleges that First Selectman George Temple instructed
Soules to cut back enforcement of drunk driving laws, that Soules refused, and
that disciplinary action ensued. Defendants allegedly solicited false complaints
about Soules, created false performance evaluations, and attempted to have him
arrested without probable cause.
On or about April 28, 2013, Soules filed a discrimination charge with the
Connecticut Human Rights Office (“CHRO”) and the Equal Employment
Opportunity Commission (“EEOC”). Soules’ first lawsuit, filed on July 23, 2014,
alleged that defendants violated his rights under state and federal anti‐
discrimination laws. Soules I, 2015 WL 5797014, at *1–4. While the motions to
dismiss in Soules I were pending, Soules was terminated on January 6, 2015,
prompting him to file a separate charge with the CHRO. On September 30, 2015,
the district court granted defendants’ motion to dismiss.
On May 9, 2016, Soules filed a second action in the District of Connecticut
against the same parties (minus two individual defendants) alleging a nearly
identical set of facts and claims, but adding the allegation that defendants
terminated Soules in retaliation for filing Soules I. Soules v. Connecticut, No.
3:16‐cv‐00703 (VLB), 2016 WL 7155731 (D. Conn. Dec. 7, 2016) (“Soules II”). The
district court’s dismissal of Soules II on the ground of res judicata prompted this
appeal.
DISCUSSION
I
We review de novo a district court’s dismissal of a complaint on the
ground of res judicata. EDP Medical Computer Sys., Inc. v. United States, 480
F.3d 621, 624 (2d Cir. 2007).
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Res judicata bars re‐litigation if “(1) the previous action involved an
adjudication on the merits; (2) the previous action involved the plaintiffs or those
in privity with them; (3) the claims asserted in the subsequent action were, or
could have been, raised in the prior action.” Monahan v. N.Y.C. Dep’t of Corr.,
214 F.3d 275, 285 (2d Cir. 2000). It is conceded that Soules I constituted an
adjudication on the merits and that the first and second lawsuit involve the same
parties. Accordingly, the only issue on appeal is whether Soules’ termination
claim in Soules II was raised, or could have been raised, in Soules I.
As to the third element, we consider whether the second lawsuit concerns
“the same claim—or nucleus of operative facts—as the first suit,” applying three
considerations: “(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 partiesʹ
expectations.” Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 280 (2d Cir.
2008) (internal quotation marks omitted). Res judicata “is based on the
requirement that the plaintiff must bring all claims at once against the same
defendant relating to the same transaction or event.” N. Assur. Co. of Am. v.
Square D Co., 201 F.3d 84, 88 (2d Cir. 2000) (citation omitted).
Soules contends that he merely mentioned his termination in Soules I; but
the first lawsuit repeatedly pressed the termination issue. Examples abound.
Thus: “[a]fter the filing [of the complaint], the defendants further retaliated
against the plaintiff by subjecting him to leave without pay, and further baseless
demands that he submit to invasive examinations, with the intent to punish him
and fabricate a grounds for his termination.” See Joint App’x 27 (Soules I Am.
Compl. ¶ 61) (emphasis added). In a document that Soules entitled “Objection to
Defendants’ Motion to Dismiss,” which was attached to his memorandum of law
in opposition to the motion to dismiss, Soules stated: “[i]n addition to the
unlawful conduct of the defendants directed at the plaintiff as set forth in his
Amended Complaint, the plaintiff has been terminated by the defendants.”
Objection to Defs.’ Mots. To Dismiss at 1, Soules v. Connecticut, No. 3:14‐cv‐1045,
(D. Conn. Feb. 10, 2015), ECF No. 40. He added: “[t]his act of employment
capital punishment occurred on or about January 6, 2015, after the filing of the
Amended Complaint, and constitutes further unlawful conduct by the
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defendants.” Id. Soules’ opposition to defendants’ motions to dismiss declared
on the first page of the memorandum that he “has been terminated by the
defendants,” and that the termination “constitutes further unlawful conduct.”
Town of Oxford Supplemental App’x 21 (Opp. Br. at 1). His termination is
mentioned throughout the opposition papers as the culmination of the course of
retaliatory, discriminatory, and harassing conduct. Soules alleged that “due to
his disability or being regarded as disabled, he has been targeted for harassment
and termination . . .” Id. at 46 (Opp. Br. at 26). In a similar vein, Soules
emphasized his termination to bolster the plausibility of his substantive due
process claim, his claim under the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”), and his First Amendment retaliation
claim. See id. at 52, 60, 62, 69, 71 (Opp. Br. at 32, 40, 42, 49, 51). These filings
reflect that Soules was seeking to update his claims to add a termination claim in
the district court, and he repeatedly raised his termination in his brief to this
Court in the Soules I appeal. See id. 140, 152, 159–61 (Br. for Appellant at 20, 32,
39–41). The complaint was thus effectively amended.
Soules relies on Computer Associates International, Inc. v. Altai, Inc.,
which explains that for the purposes of res judicata “the scope of litigation is
framed by the complaint at the time it is filed,” and that the doctrine “does not
apply to new rights acquired during the action which might have been, but
which were not, litigated.” 126 F.3d 365, 369–70 (2d Cir. 1997). In Legnani v.
Alitalia Linee Aeree Italiane, S.P.A., we specifically applied this principle to a
retaliatory discharge claim. See 400 F.3d 139, 141 (2d Cir. 2005) (“When Legnani
filed her 1995 [Title VII] action, she had not yet been discharged from Alitalia.
She could not have brought the retaliatory discharge action at that time and,
accordingly, she was free to bring her retaliatory discharge claim in this
subsequent action.”). Moreover, in Proctor v. LeClaire, we applied that rule
where, as here, the plaintiff raised a subsequently arising claim in motion papers
during the pendency of the first action. See 715 F.3d 402, 406–12 (2d Cir. 2013).
Soules thus argues that res judicata does not bar claims that arose from
transactions that occurred after he filed Soules I.
We conclude, however, that Soules’ argument fails because his post‐
complaint conduct in Soules I effectively amended his complaint to add a
retaliatory termination claim. Ordinarily, parties may not amend the pleadings
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through motion papers. See Shah v. Helen Hayes Hosp., 252 F. App’x 364, 365
(2d Cir. 2007) (summary order); Mathie v. Goord, 267 F. App’x 13, 14 (2d Cir.
2008) (summary order). But our only holding is that “a party is not entitled to
amend its complaint through statements made in motion papers,” Wright v.
Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (emphasis added), and
“entitlement” is not the claim or the issue in this case. One may seek what one is
not entitled to demand, and may get what one cannot claim as of right. Here, it
appears that the district court implicitly permitted Soules to amend the initial
complaint to address his employment termination. Soules can hardly claim on
behalf of defendants that the amendment caused them prejudice. See Foman v.
Davis, 371 U.S. 178, 182 (1962) (holding that “undue prejudice to the opposing
party,” among other reasons, is a ground to deny leave to amend). Much less
can he show good reason why he should be afforded the opportunity to pursue
the claim again.
Soules I and Soules II repeatedly link Soules’ termination to the same
course of unlawful conduct by defendants. The termination in Soules II is thus
“related in time, space, origin, or motivation” to the discriminatory and
retaliatory conduct alleged in Soules I. Channer, 527 F.3d at 280. And because
Soules I and Soules II allege the same conduct by defendants, there can be no
question that addressing all of the claims at once would form a “convenient trial
unit” and would “conform[] to the parties’ expectations.” Id. Computer
Associates is thus inapposite to the circumstances here: if res judicata did not
apply, the duplication of proceedings that would ensue, with the attendant waste
of resources and risk of inconsistent results, is precisely what the doctrine of
claim preclusion prevents. We conclude that the district court correctly ruled
that res judicata bars this subsequent action.
II
Soules further argues that the dismissal should be reversed because it was
impossible for him to assert the termination claim in Soules I without exhausting
administrative remedies. Ordinarily, a plaintiff seeking to bring a claim
pursuant to the Americans with Disabilities Act (“ADA”), Title VII, or the
Connecticut Fair Employment Practices Act (“CFEPA”) must exhaust
administrative remedies through the EEOC or CHRO. See Williams v. N.Y.C.
7
Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (Title VII); J.C. v. Reg’l Sch. Dist. 10,
Bd. of Educ., 278 F.3d 119, 124 (2d Cir. 2002) (ADA); Sullivan v. Bd. of Police
Comm’rs of City of Waterbury, 196 Conn. 208, 215–16 (1985) (CFEPA).
In this circuit, however, “claims that were not asserted before the EEOC
may be pursued in a subsequent federal court action if they are ‘reasonably
related’ to those that were filed with the agency.” Shah v. N.Y. State Dep’t of
Civil Servs., 168 F.3d 610, 614 (2d Cir. 1999) (citations omitted). “Subsequent
conduct is reasonably related to conduct in an EEOC charge if: [1] the claim
would fall within the reasonably expected scope of an EEOC investigation of the
charges of discrimination; [2] it alleges retaliation for filing the EEOC charge; or
[3] the plaintiff alleges further incidents of discrimination carried out in precisely
the same manner alleged in the EEOC charge.” Alfano v. Costello, 294 F.3d 365,
381 (2d Cir. 2002) (internal quotation marks omitted).
Soules’ termination claim was “reasonably related” to the original
administrative charge under both the second and third Alfano exceptions to the
exhaustion requirement.
As to the second exception, Soules draws a distinction between a claim of
retaliation for filing an EEOC or CHRO charge, which would be subsumed in the
original administrative filing, and the filing of a federal lawsuit (Soules I), which
he argues (for some reason) would not. But the reason underlying this exception
applies with equal force to retaliation for filing a federal lawsuit as it does for
filing an administrative charge: “the close connection of the retaliatory act to
both the initial discriminatory conduct and the filing of the [lawsuit] itself.”
Butts v. City of N.Y. Hous. Pres. and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993)
(citing Owens v. N.Y.C. Hous. Auth., 934 F.2d 405, 410–11 (2d Cir. 1991)).
Requiring plaintiffs to file a second lawsuit regarding an employer’s retaliatory
conduct would duplicate investigations and waste resources on a claim
concerning conduct already at issue in the first lawsuit; furthermore, it could
perversely incentivize employers to retaliate in order to “impose further costs on
plaintiffs and delay the filing of civil actions relating to the underlying acts of
discrimination.” Id. Because the termination claim was reasonably related to the
original administrative charge, Soules would not have been barred from bringing
the claim in Soules I.
8
As to the third exception, Soules contends that the termination claim does
not allege “discrimination carried out in precisely the same manner alleged in the
EEOC charge.” Alfano, 294 F.3d at 381 (internal quotation marks omitted).
Considering that the filings in both Soules I and Soules II allege that defendants
retaliated against Soules for filing a complaint, that the retaliation took the form
of disciplinary action, and that defendants were building a case for retaliatory
termination, the termination claim bore (at least) a reasonable relationship to the
claims in Soules I.
Res judicata applies to claims pending review in administrative
proceedings. See Woods v. Dunlop Tire Corp., 972 F.2d 36, 37–41 (2d Cir. 1992).
Soules therefore had two options after the termination of his employment:
(1) request a stay of Soules I after he filed the second CHRO charge, and then
seek to join the termination claim, or (2) seek to amend the Soules I complaint.
See id. at 41. As explained above, Soules took the second option: his conduct
amended the Soules I complaint to include a retaliatory termination claim. The
requirement that plaintiffs must exhaust administrative remedies does not alter
this conclusion. Accordingly, Soules’ termination claim could have been fully
litigated in Soules I and was, and res judicata therefore prohibits Soules from re‐
ligating it here.
CONCLUSION
For the foregoing reasons, we hereby AFFIRM the judgment of the district
court.
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