Res judicata knocks out retaliation lawsuit

Here we learn a few lessons about refiling your claims and the limits to repeatedly prosecuting your case in federal court. The plaintiff's case is dismissed because the second lawsuit was not much different from the first, which the court had already dismissed on the merits.

The case is Soules v. State of Connecticut, decided on February 8. Plaintiff was a police officer who claims his Town employer harassed, discriminated and retaliated against him based on his disabilities, military service and his protected complaints. After he filed the lawsuit, he was fired, so plaintiff filed an administrative complaint with the Connecticut Human Rights Office, the local version of the EEOC. Meanwhile, the federal complaint was dismissed under Rule 12. When that happened, plaintiff filed a second lawsuit, claiming he was fired in retaliation for filing the first lawsuit.

This sequence of events probably happens quite often, but I have never thought about the consequences of the second lawsuit. The defendant moved to dismiss the second action on res judicata grounds, arguing that it was the same case as the first. Technically, it was not, since the first lawsuit did not allege unlawful retaliation and the second one did. Yet, the Court of Appeals (Jacobs, Raggi and Droney) says the first lawsuit repeatedly makes reference to the termination that awaited plaintiff, stating, "after the filing of the complaint [presumably an internal complaint or one with the CHRO], 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 termination." Then, in opposing the motion to dismiss, plaintiff attached a statement to his brief that said "in 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," claiming this constituted "further unlawful conduct by the defendants." The Court of Appeals says "his termination is mentioned throughout the opposition papers as the culmination of the course of retaliatory, discriminatory, and harassing conduct."

On this basis, the Court holds, plaintiff's "post-complaint conduct in Soules I effectively amended his complaint to add a retaliatory termination claim." True, parties usually amend through a formal motion. While the Court has held in the past that "a party is not  entitled to amend its complaint through statements made in motion papers," in this case, "it appears that the district court implicitly permitted Soules to amend the initial complaint to address his employment termination." That means the second complaint was essentially the same as the first, which was already dismissed, triggering res judicata, which ends his  dispute with the Town for good.