Opinion
No. HHB-CV-075004365
April 13, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT — #105
I. Nature of Proceedings
The plaintiff, Richard Barry (hereinafter "Barry"), a former personnel manager of the defendant, the New Britain Board of Education (hereinafter "the board") commenced this action by complaint dated May 29, 2007. The complaint is brought in two counts. The first count alleges a breach of a settlement agreement entered into in 2001 as part of the final settlement of a lawsuit brought by Barry against the board on July 15, 1998, in the federal district court ( Barry I). The second count alleges a breach of an employment agreement entered into by and between these parties that resulted from the settlement of that federal action. The present state action was filed subsequent to a second action filed in the federal district court ( Barry II) on February 24, 2005, that was based on substantially similar claims involving the same parties, which was initially disposed of via a summary judgment entered by the Hon. Peter C. Dorsey, U.S. District Court judge, on December 22, 2006. That judgment was affirmed by the federal court of appeals for the second circuit on November 24, 2008, Richard Barry v. New Britain Board of Education, United States Court of Appeals, Docket No. 07-0162-cv (2d Cir. 2008). In the present action, on April 3, 2008, the defendant filed a motion for summary judgment, claiming, as to each count, that there is no genuine issue as to any material fact and that the state action should be barred by the doctrines of res judicata and collateral estoppel. The parties, in addressing said motion, have each submitted multiple comprehensive briefs with numerous documentary exhibits attached thereto, all of which have been extensively reviewed by this court in arriving at its decision to grant the defendant's motion.
II. The Plaintiff's complaint — The State Action
The plaintiff brings his complaint in two counts, the first count alleging that the board breached a settlement agreement and the second count alleging that the board breached an employment agreement. The plaintiff alleges that he was employed by the board for a period of fourteen years, from December 1989 through August 2004. He claims, however, that in January 1997, he was demoted from his position as personnel manager to that of associate personnel manager and that his former position was filled by a less qualified younger man. As a result of the board's action, the plaintiff filed an age discrimination complaint with the Connecticut Commission On Human Rights and Opportunities and, apparently with the U.S. Equal Employment Opportunities Commission. The plaintiff alleges that as a result of those complaints, members of the board threatened to terminate him, but instead, in June 1997, reduced his salary. As a result of that action, in July 1998, the plaintiff filed a federal age discrimination lawsuit in the federal district court for the District of Connecticut. That case was settled in June 2001, resulting in the execution of a settlement agreement, which the plaintiff attached to the complaint as Exhibit A and a subsequent employment agreement, which the plaintiff attached to his complaint as Exhibit B.
The "Release and Settlement Agreement," which is dated June 25, 2001, settled and fully resolved all issues between the parties, in particular, all matters that were the subject of the plaintiff's complaints to the state and federal agencies and the plaintiff's federal lawsuit. The title of personnel manager was restored to the plaintiff and he was to receive a lump sum of $112,500. The plaintiff was to earn a salary of $86,730, to be increased consistent with that earned by other non-union administrators. Notably, Paragraph #11 of the agreement provided: "Neither the board nor its agents or representatives will retaliate in any manner against Barry for any conduct undertaken by Barry in connection with the lawsuit or his underlying claim."
The contract of employment was dated June 29, 2001, four days after the date of the settlement agreement. The compensation provided to Barry was initially set at $93,989, an amount considerably higher than that referred to in the settlement agreement. Yearly increases were provided during the four years that the contract was to be in force, i.e., from July 1, 2001 through June 30, 2005. In addition to briefly reciting the plaintiff's duties, the contract provided for certain fringe benefits (sick time, vacations, insurance, mileage) as well as an available tax annuity. The fifth paragraph was entitled "Termination" and provided that during the contract term, Barry "shall be subject to dismissal only for good and just cause." Any anticipated termination required written notice and entitled the plaintiff to a hearing before the board with the right to be represented by counsel of his choice. The contract was to be annually renewed unless the board, based "only [on] good and just cause," decided not to do so, however, one hundred and twenty days prior notice was required. Notably, Paragraph #8 provided that:
This contract contains the entire agreement by and between the board and the personnel manager. It may not be amended orally but may be amended by an agreement in writing, signed by both parties and attached hereto. Immediately upon signing, this agreement shall supersede all prior agreements between the parties. (Emphasis added.)
In the first count of his complaint, the plaintiff alleges that sometime prior to June 16, 2004, the board formulated and implemented another "scheme" calculated to remove the plaintiff from his position, allegedly, in violation of both the settlement agreement and the employment agreement. Specifically, the plaintiff claims that on August 23, 2004, he was terminated under the "pretext" of the board trying to save money; however, prior to his termination, the board had hired an acting personnel director at a salary of $100,000 per year and had increased the budget by another $50,000 to hire an attorney to perform the same arbitration and negotiation work that the plaintiff had done for the past fifteen years. The plaintiff further alleges that prior to his termination, the board had advertised for a new position of director of human resources for which the plaintiff claims he was fully qualified and actually applied for, but that the defendants suspended the hiring process as soon as Barry's application was received. The plaintiff claims that as a result of his termination, he has suffered lost wages and benefits including pension benefits, and that his professional standing has been diminished. The plaintiff asserts that the defendant's breach of the settlement agreement was wanton and malicious and was motivated by bad motives, exhibiting a reckless indifference to the interests of others. In the second count, the plaintiff incorporates all of the paragraphs of the first count and adds that his termination was without cause in breach of the employment agreement and was motivated by malice. The plaintiff asserts that this state action is brought subsequent to the dismissal of the federal action, pursuant to General Statutes, § 52-592(d), the accidental failure of suit statute.
The relevant portion of that section provides: "The provisions of this section shall apply to . . . any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error."
III. Barry II — The Federal Action A. The Exhibits
On February 22, 2005, the plaintiff filed a four-count complaint in the federal district court based upon claims of age discrimination, retaliation, breach of the employment agreement and breach of the settlement agreement. See Defendant's Exhibit A. The factual background provided in that complaint is totally consistent with the allegations contained in the plaintiff's subsequently filed state complaint, allegations which have been detailed above, in particular, the claim that the board was "implementing another scheme" (Paragraph #20) and that the plaintiff's termination was under the "pretext" that the board was saving money (Paragraph #22).
On December 22, 2006, the Honorable Peter C. Dorsey issued his memorandum of decision that granted the board's motion for summary judgment on all counts and denied the plaintiff's partial motion for summary judgment. Defendant's Exhibit N. Notably, the extensive factual findings recited by Judge Dorsey in his memorandum are in absolute accord with this court's assessment of the relevant facts, in viewing those facts in a light most favorable to the plaintiff as this court is obligated to do in considering the defendant's motion for summary judgment. Therefore, this court, in summarizing those facts will refer the reader to Richard Barry v. New Britain Board of Eclucation, 3:05 cv-00328 (PCD).
With two exceptions, which will be hereinafter addressed, Judge Dorsey was presented and reviewed the same exhibits submitted by the parties that have been extensively reviewed by this court in considering the board's motion and Barry's objection thereto. In addition to the federal complaint, the settlement agreement and the employment agreement, among the thirteen exhibits submitted to this court and to Judge Dorsey by the board were the following: the plaintiff's deposition transcript (Exhibit D); the superintendent's (Kurtz) deposition transcript (Exhibit F); a report of a study of the human resources department dated June 2, 2003, which was prepared by Education Management Solutions, LLC at the request of the board (Exhibit G); a transcript of the plaintiff's termination hearing before the board that took place on April 23, 2004 (Exhibit H); a two-page list of "budget adjustments" approved by the board on June 15, 2004, which, among other positions, eliminated that held by the plaintiff (Exhibit I); the plaintiff's termination letter and dismissal notice (Exhibits J and K, respectively); the deposition transcript of Herbert F. Pandiscio, the interim human resources director during the summer of 2004 (Exhibit L); and the deposition of Robert Stacy, the permanent human service's director who succeeded Pandiscio in April 2005 (Exhibit M).
In addition to the settlement and employment agreements, among the seven exhibits submitted by the plaintiff were two pages of the plaintiff's personal calendar for the dates of June 25-July 1, 2001 (Exhibit D); a letter from the plaintiff's attorney to the board's attorney, dated June 29, 2001, confirming the settlement (Exhibit E); and a newspaper account that reported the settlement (Exhibit F) Two exhibits submitted by the plaintiff to this court were not submitted to Judge Dorsey in the federal action. Plaintiff's Exhibit A is an affidavit dated September 22, 2008, authored by the plaintiff that details his version of the relevant events, In this eight-page, thirty-three paragraph document, the plaintiff disputes the saving of money claim advanced by the board, claiming that more money was paid to those who performed the plaintiff's job duties than would have been paid had the plaintiff remained in his position (paragraph #29) and that there was no evidence that the board, in alleviating "positions," actually terminated anyone other than the plaintiff in June 2004 (paragraph #33). Plaintiff's Exhibit G is an affidavit authored by attorney John Gesmonde, who apparently is experienced in employment law and who contests the claim that one can be legitimately terminated for "good and just cause" due to mandated budgetary reductions, a conclusion that was rejected by Judge Dorsey. In this court's view that issue is a question of law and not a matter to be decided by the ultimate fact-finder.
A third exhibit consists of an affidavit that accompanied a supplemental brief submitted by the plaintiff on June 16, 2009. The affidavit, which is authored by the plaintiff, has been reviewed and will be hereinafter referred to.
B. The Relevant Facts
Judge Dorsey reviewed the history leading up to the settlement of Barry I in June 2001, and the aftermath. After the settlement, Dr. Doris Kurtz, the newly hired superintendent, ordered the efficiency study of the human resources department that, inter alia, questioned the need for two administrative positions in that department. At that time, the plaintiff was the personal services manager, while the other administrative position was that of the director of human resources. Despite that concern, however, the initial budget for the fiscal year 2004-05 that was prepared by the board and submitted to the finance authority of the city did include funding for the plaintiff's position. Once the board of finance received the proposed school budget, that board recommended a reduction of $5.48 million. The recommendation of the board of education was ultimately cut by $3.4 million, which resulted in that board, after receiving input from students, parents and staff, eliminating forty-eight positions, including that of the plaintiff. Dr. Kurtz found that the budget constraints imposed by the Common Council, the ultimate budgetary authority in New Britain, constituted just cause for terminating those whose positions were eliminated. The action resulted in formal notice to the plaintiff, who requested the hearing provided in his employment contract. Dr. Kurtz had concluded, based on the human resources study, that having two administrative positions in the human resources department was an inefficient management structure that was not comparable to that of other school districts. On July 31, 2004, immediately after the hearing, the plaintiff was terminated.
Two months before his termination, the plaintiff had applied for the position of director of human resources, as it was then open due to retirement. The plaintiff, who was seventy years of age at the time, interviewed for the position, while Mr. Pandiscio, then age seventy-three, filled it on a temporary basis. Dr. Kurtz, however, recommended to the board that the position not be filled at that time as she deemed none of those interviewed to be acceptable. The plaintiff's termination and his failure to obtain the director's position formed the basis of his federal complaint. It is noteworthy that the federal standards applicable to the determination of motions for summary judgment cited by Judge Dorsey in his opinion, are substantially similar to those applied by our state courts.
C. Judge Dorsey's Decision
The board moved for summary judgment on all four of the plaintiff's claims; age discrimination, retaliation for the 1998 claim, breach of the employment contract and breach of the settlement agreement. The plaintiff filed a motion seeking summary judgment on the retaliation and breach of settlement agreement counts only.
1. Age Discrimination
As to the age discrimination claim, Judge Dorsey opined that even if Barry established a prima facie case of age discrimination, he would still fail under this count, as the board produced substantial evidence of nondiscriminatory motives for the plaintiff's termination, i.e., the budget cuts, noting that the plaintiff's position was included in the board's original proposal. The court also made specific reference to the human resource study and its concern over the inefficiency of the two administrative positions in the department. As to the plaintiff's claim relating to the board's refusal to hire him as the director, Judge Dorsey made reference to the deposition of Dr. Kurtz (Defendant's F), who testified that the hiring committee did not deem the plaintiff a leading candidate, as he lacked the interpersonal skills required for that position. Finding that the defendant had articulated legitimate, nondiscriminatory reasons for the plaintiff's termination and the board's decision not to rehire him as the director, Judge Dorsey, citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993), and other applicable federal cases, found that the plaintiff was unable to prove by a preponderance of the evidence that the reasons offered by the board were merely a "pretext for discrimination." Judge Dorsey found, after examining all of the exhibits offered by the plaintiff, making specific reference to the plaintiff's own deposition (Defendant's D), that there was "no evidence to contradict defendant's legitimate, nondiscriminatory reasons." The court pointed out, citing Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996), that "[c]onclusions, conjecture and speculation are not enough to provide a basis for finding a genuine issue of material fact for trial." The court granted the defendant's motion as to the age discrimination count.
2. Retaliation
As to the retaliation count, Judge Dorsey, in granting the board's motion and in denying that filed by the plaintiff, agreed with the board that there was no evidence that the elimination of the plaintiff's position and the board's decision not to rehire him were retaliatory, or that the board's stated reasons for eliminating his position and not rehiring him were pretextual. Judge Dorsey saw no evidence that provided a nexus between the initiation in 1998 and settlement of Barry I in June 2001 and the plaintiff's termination three years later, again, making specific reference to the education budget squeeze in New Britain at the time, the resultant elimination of forty-eight positions, in addition to that of the plaintiff, and the human resources study. Judge Dorsey opined: "Plaintiff's claim of direct causation, which is based on an attenuated chain of events and disregards the intervening budget crunch, is unavailing." Referring to the June 29, 2001, employment contract and the right granted therein to the board to terminate the plaintiff for good and just cause, Judge Dorsey offered that, "[p]laintiff had no guarantee of infinite employment as personnel manager." The court found that the exhibits submitted by the plaintiff provided no evidence that the elimination of the plaintiff's position was pretextual.
3. Breach of the Employment Contract
Judge Dorsey cited 28 U.S.C. Sec. 1367(c)(3), which provides that once the court has disposed of the federal claims by summary judgment no independent basis remains for exercising pendent jurisdiction as to the plaintiff's breach of contract (employment and settlement agreement) claims, each of which are claims under state law. Nevertheless, the court proceeded to address, rule on and dispose of the two state claims, granting summary judgment to the board on the third and fourth counts.
As to the plaintiff's claim that the board breached the employment contract, Judge Dorsey, in contradiction of the affidavit authored by Barry's expert, Attorney Gesmonde (Plaintiff's G), and quoting Valle v. Johnson Controls World Servs, Inc., 957 F.Sup. 1404, 1414 (S.D.Miss. 1996), stated: "It is well established that a legitimate reduction of force during a budgetary shortfall or economic downturn, supported by unrefuted, substantial record evidence constitutes just cause for termination as a matter of law." (Emphasis added.) Moreover, that proposition applies in cases, such as this one, where the plaintiff asserts that the alleged reduction in work force was simply a pretext for discrimination. Grooms v. Mobay Chemical Corp., 861 F.Sup. 497, 504-5, aff'd 993 F.2d 1537 (4th Cir.), cert. denied, 510 U.S. 996 (1993). Referring to his discussion earlier in his opinion, Judge Dorsey points to the board's legitimate reason for the elimination of the plaintiff's position and its decision not to rehire as necessitated by the mandated budget cuts and as justified by the board's "fair appraisal of the inefficiencies of his position and a reasonable evaluation of his interview performance." In entering summary judgment on the breach of employment contract count, the court found that the board's stated reasons for the plaintiff's termination constituted good and just cause pursuant to the termination clause in his contract and was consistent with well-established legal precedent.
4. Breach of the Settlement Agreement
As noted, each of the parties were seeking summary judgment on the fourth count of the plaintiff's complaint, which was founded upon the plaintiff's claim that his termination and the board's failure to rehire him violated the settlement agreement which disposed of Barry I. Referring to the employment contract, Judge Dorsey stated: "In bringing this claim, plaintiff ignores the effect of the employment contract, the language of which explicitly supersedes "all prior agreements between the parties," including the Settlement Agreement." The court pointed out that the plaintiff offered no evidence which controverted the plain language of that agreement, "which states no connection to the settlement agreement and clearly supersedes all prior agreements." (Emphasis added.) The court concluded that "[t]he subsequent employment contract therefore prevails over the Settlement Agreement and is dispositive of any claim of breach of the Settlement Agreement."
Despite that ruling, however, Judge Dorsey went on further, finding that even if the settlement agreement was not superseded by the employment contract and was still in effect, his decision to grant the summary judgment on this count would, nevertheless, stand, finding that the "[p]laintiff's breach of settlement agreement claim [was] a variation of his retaliatory claim." Referring to his discussion of and ruling on the second count, Judge Dorsey opined that the breach of settlement agreement cause of action "would only have legal effect if the termination of the plaintiff's position was in fact proven to be retaliatory." Having found, presumably, from evidence that included all of the exhibits submitted by the plaintiff, "no basis in the record" to establish that the plaintiff's termination was for reasons other than the actions necessitated by the cuts in the education budget mandated by the Common Council and, therefore, no evidence that the board's actions in this regard were pretextual, the court found, as it did with regard to the second count, that there was "no genuine issue of fact" to support the fourth count. The court granted the defendant's motion for summary judgment and denied that filed by the plaintiff.
Thus, in a well-reasoned opinion, except for three items earlier referred to herein, having the same exhibits before him that are before this court, Judge Dorsey not only addressed the federal and state counts, but ruled on them and disposed of each.
D. Subsequent Proceedings
The official case record, which has been obtained by this court, confirms that on January 12, 2007, the plaintiff filed a "notice of appeal" of Judge Dorsey's decision. Document #84. On March 30, 2007, plaintiff filed in the district court, a motion seeking to vacate the summary judgment entered on the third and fourth counts of the plaintiff's complaint, the two state counts. Document #89. On April 5, 2007, Judge Dorsey granted the plaintiff's motion, vacated the summary judgment relative to the two state counts, and dismissed the third and fourth counts, "without prejudice so that the plaintiff can pursue them in Connecticut state court if he chooses to do so." Kolari v. New York-Presbyterian Hospital, 455 F.3d 118, 122 (1988). Pursuant to that case and the U.S. Supreme Court's decision in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1998), Judge Dorsey, despite having fully considered and disposed of all of the plaintiff's claims, federal and state, declined to exercise supplemental jurisdiction over the state breach of contract claims. Thus, Judge Dorsey paved the way for the plaintiff to commence a state action in this court pursuant to Connecticut's accidental failure of suit statute.
As noted, on November 24, 2008, the United States Court of Appeals for the Second Circuit issued a "summary order" affirming Judge Dorsey's decision on the federal counts, including the retaliatory count, a count which Judge Dorsey deemed to be inextricably connected to the state breach of settlement agreement cause of action. This court will hereinafter detail the findings made by that three-judge panel, which included the Honorable Sonia Sotomayor, now an associate justice of the United States Supreme Court. This court will, however, at this juncture, mention that the court, in affirming Judge Dorsey, did so after " considering the record as a whole." (Emphasis added.)
IV. Procedural History of This Case CT Page 8666
The plaintiff's complaint is dated May 29, 2007, and was filed on June 7, 2007. The defendant filed an answer and nine special defenses on July 26, 2007. The seventh special defense consists of an assertion that, as Judge Dorsey had found, the settlement agreement was superseded by the subsequent employment agreement and, therefore, no longer was of any force or effect. The defendant further asserted that no cause of action could be predicated upon the settlement agreement. On January 10, 2008, the plaintiff filed his reply, claiming, without specifics, that all nine special defenses had been "waived" by the defendant. On April 3, 2008, the defendant filed its motion for summary judgment (#105), that was accompanied by a twenty seven-page memorandum and seventeen exhibits. On September 24, 2008, the plaintiff filed his twenty-three page oppositional memorandum (#108) that was accompanied by seven exhibits that included the orders of dismissal of Barry I entered after the settlement, and Judge Dorsey's dismissal of the two state counts in Barry II. Exhibits submitted to this court by each of the parties have been previously identified, herein. On October 16, 2008, the defendant filed its reply memorandum (#109). On November 3, 2008, the plaintiff filed a supplementary brief (#110).On November 3, 2008, this court, on the record, reviewed the positions of each of the parties as derived from its review of the briefs, the exhibits and Judge Dorsey's decision. The court informed plaintiff's counsel that it disagreed with his earlier statement that this case had "nothing to do with the federal case," as this court believed then, as it does now, that the case pending in this court has everything to do with the federal case. After confirming that the court understood the claims being made by each of the parties and the issues involved in addressing the defendant's motion for summary judgment, the court summarized Judge Dorsey's decision, stressing, in particular, his finding that the federal retaliation claim, then part of the appeal, was a variation of the state breach of settlement claim. The court then informed counsel that it had arrived at the inescapable conclusion that any trial of the state case and decision on the motion for summary judgment needed to await final action from the second circuit. The court then stayed these proceedings pending the federal appellate court's decision on the plaintiff's appeal. The court advised counsel to notify the clerk upon receipt of the opinion from the second circuit, whereupon further proceedings would be scheduled.
Although the summary order, the content of which will be hereinafter addressed, was issued by the second circuit on November 24, 2008, and although both attorneys provided the court with a copy of that decision in December of that year, a status conference did not take place until May 14, 2009, during which a briefing schedule was agreed to, as each party needed to provide the court with an assessment as to what impact and efficacy, if any, the federal appellate court's decision had on the matters pending before this court. The court received the plaintiff's memorandum (#112) on June 15, 2009; however, a supplemental memorandum was filed on the next day that was accompanied by a new affidavit executed by the plaintiff on June 11, 2009. In that affidavit, the plaintiff asserts that despite the elimination of the forty-eight positions from the board's budget in 2004, "no one lost his job" except for the plaintiff. It is noteworthy that this document, although submitted to this court in 2009, contains information that was clearly known to the plaintiff long before Judge Dorsey decided the board's motion for summary judgment in the federal action. The defendant's response was filed on July 17, 2009 (#114). The court heard argument from each of the parties on October 7, 2009.
IV. The Second Circuit's Summary Order
By summary order dated November 24, 2008, the U.S. Court of Appeals for the Second Circuit, via a three-judge panel, affirmed the judgment of the district court. "Upon due consideration" and after "considering the record as a whole," the court agreed with Judge Dorsey that, "Barry [could not] establish pretext for either of his claims. The appellate court agreed with Judge Dorsey that even under the assumption that the plaintiff had established a prima facie case of age discrimination and retaliation, "his claims fail because he cannot show that the board's proffered explanations for terminating his position or not hiring him to be the director of human resources were merely pretextual and that the actual motivations more likely than not, were discriminatory . . . or retaliatory." Although referring to the board's explanations ( plural), i.e., reasons for terminating the plaintiff and failure to re-hire him, the appellate court, in its brief opinion, chose to specifically discuss only one of those explanations. The court made specific reference to the board's failure to hire the plaintiff for the director's position, stressing the fact that Stacy, who was the newly hired director, possessed a law degree. The court, citing Byrnie v. Cromwell Bd. of Educ., 243 F.3d 93, 103 (2nd Cir. 2001), gave deference to the board's "unfettered discretion to choose among qualified candidates." As noted, after considering the entire record, the court held that Barry was unable to establish that his termination and failure to rehire was a "pretext" for the board's alleged discriminatory or retaliatory conduct.
V. Claims of the Parties A. The Defendant's Position CT Page 8668
In summarizing the claims of each of the parties, this court will do so based upon the factual background recited by Judge Dorsey and referred to earlier in this memorandum. The board argues, citing, inter alia, Halpern v. Board of Education, 196 Conn. 647, 652 (1985) and Planning and Zoning Commission v. Campanelli, 9 Conn.App. 534 (1987), that the case before this court is of the same character, involving the same parties, raises the same issues, and seeks the same result as that brought by the plaintiff in the federal court, i.e., Barry II. The board correctly points out that a comparison of the allegations contained in the third and fourth counts of the federal complaint with the two causes of action set forth in the sixteen paragraphs of each of the two counts in this case clearly demonstrates that the allegations are virtually identical. The defendant asserts that it is those allegations that were considered and resulted in a decision by Judge Dorsey favorable to the board, a decision affirmed by the second circuit. The board argues that the plaintiff should not be permitted to once again present for disposition the very same case that was presented to and decided by the federal courts. The defendant further claims that the same underlying rights which the plaintiff asserts in this state case were adjudicated and necessarily determined in the federal case.The defendant asserts that its position is especially applicable to the first count (breach of settlement agreement), as that agreement was, as clearly stated therein and as found by Judge Dorsey, superseded by the subsequent employment agreement. The defendant first raised this issue of res judicata or claim preclusion in October 2008, in its initial brief that accompanied its motion for summary judgment. The defendant cites several federal and state cases that discuss the doctrine, including Meehan v. Town of East Lyme, 919 F.Sup. 80, 83-84 (D.Conn. 1996) aff'd, 104 F.3d 352 (2nd Cir. 1996), cert. denied, 520 U.S. 1156 (1997); Sekor v. Capwell and The Ridgefield Board of Education, 1 F.Sup.2d 140 (D.Conn. 1998); and DeMilo Company v. Commissioner of Motor Vehicles, 233 Conn. 281, 292 (1995). These cases hold that the doctrine not only prevents litigation of all claims or issues which were raised in the prior action, but those that could have been raised and were not. Thus, the defendant argues that the doctrine of claim preclusion serves to prevent the plaintiff from raising in the case before this court those claims that relate to the claims that were made by the plaintiff in the federal action and those claims that might have been made by the plaintiff in said action.
The defendant cites the so-called "transaction test" as set forth in § 24 of Restatement (Second) of Judgments. The defendant asserts that the doctrine of res judicata should be applied in this case, because both the federal and state actions emanated from the circumstances surrounding the plaintiff's termination and the board's failure to rehire him and arose out of the same transaction. Applying that test to the circumstances of this case, the defendant asserts that the facts in both cases are related in time, space and origin; that the facts form a convenient trial unit; and that treating the facts and circumstances as a unit is certainly in conformance with the expectation of the parties.
As to the second count of the plaintiff's complaint that is based upon the alleged breach of the employment contract, the board argues that the doctrine of claim preclusion should likewise be applied to bar any action on this count. The board refers to Judge Dorsey's finding that the unrefuted substantial record evidence demonstrated that the budget crunch was the basis for the plaintiff's termination and legally constituted just cause for the elimination of his position. The board cites Rivers v. Milford Mental Health, (CV-98-0064896), Superior Court, judicial district of Ansonia-Milford, Lager, J., May 20, 2002 [ 32 Conn. L. Rptr. 301], and several federal cases that hold summary judgment to be the proper vehicle for disposing of a termination claim, when the reason for the termination was a mandated reduction in the work force due to an economic downturn. The board points out that it had included the plaintiff's position in the budget and that it was the mandate of the Common Council, coupled with the human resources study that resulted in the elimination of the plaintiff's position, along with forty-seven others. As Judge Dorsey stated, the employment agreement did not provide a guarantee of employment.
The board asserts that a court has already addressed and decided the essential elements upon which all of the plaintiff's claims are based. Further, the plaintiff has been accorded a full opportunity to litigate this matter and a federal trial court has fully determined the issues on the merits. Citing Virgo v. Lyons, 209 Conn. 497, 502 (1988), the defendant submits that the plaintiff's claims are now barred by the doctrine of res judicata and, therefore, summary judgment is the appropriate vehicle to decide this case.
Again, asserting that the allegations in the plaintiff's complaint in this case are "virtually indistinguishable" from those in the federal complaint, the board argues that Judge Dorsey's decision was grounded upon the "same operative facts" that formed the basis of the plaintiff's claims now pending in this court. In a similar situation to the present case, in somewhat of a reverse order, the federal district court in Sekor, supra, granted summary judgment to the Ridgefield board of education based upon the doctrine of res judicata, after the state court had upheld Sekor's termination for alleged incompetence. Judge Eginton found that both claims arose out of the same transaction, despite the fact that the state court did not reach the federal age discrimination claim. The court held that Sekor had an adequate opportunity to litigate the employment discrimination claims. The board argues that Judge Dorsey's decision in granting summary judgment precludes the present action pursuant to the doctrine of claim preclusion, as it was a well articulated decision rendered on the merits and should therefore be an absolute bar to any subsequent action based on the same operative facts.
Additionally, the board argues that the doctrine of collateral estoppel or issue preclusion should likewise be applied to this case as the identical issues to those in the state case were not only raised, but were actually litigated and decided; the plaintiff had a full and fair opportunity to litigate the issues; and the resolution of the issues raised was necessary to support a valid and final judgment. Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3rd 86, 91 (2nd Cir. 1997). The board cites Meehan, supra, at page 85-86, for the proposition that an issue may be "actually decided," even if not explicitly decided, so long as the resolution of the issue was a necessary component to the decision. The defendant argues that Judge Dorsey decided several related issues of fact and law based upon allegations in the federal case that are nearly identical to those in this case. The plaintiff, therefore, should, per the doctrine of issue preclusion, be prevented via summary judgment from re-litigating the same issues in this court. The board points out that Judge Dorsey rejected the plaintiff's claim that the settlement agreement was executed after the employment contract and his claim that the settlement agreement was breached, as he found no evidence that the elimination of the plaintiff's position was pretextual, or that his termination, or failure to rehire, was in retaliation for Barry I. The board argues that the plaintiff should not be allowed to relitigate in this state court the first count, which is a variant of the retaliation claim that has already been litigated and decided in the federal court. The breach of employment contract claim was rejected by Judge Dorsey, as he found that the budget cuts and the human resources study provided a legitimate, nondiscriminatory reason for the plaintiff's termination and constituted "good and just cause" under the terms of the employment contract. The board asks this court to agree with its position that it should employ the doctrine of collateral estoppel to prevent the plaintiff from re-litigating issues that were fully addressed and finally resolved by the federal courts.
B. The Plaintiff's Response
In his initial memorandum filed in October 2008, the plaintiff avoids responding to the defendant's claims of res judicata and collateral estoppel by correctly pointing out that no final decision was rendered in the federal action, as the plaintiff's appeal was then pending. Additionally, the plaintiff referred to the nine special defenses then pending in this court, none of which raised those issues.
In addressing the first count (settlement agreement), the plaintiff places heavy reliance on the affidavits submitted by him (Plaintiff's A) and his claim, despite Judge Dorsey's findings and despite the plain language of the employment agreement, that it was the employment agreement that was first executed, and not the settlement agreement. The plaintiff further claims that the settlement agreement incorporated the employment agreement and, in effect, guaranteed his employment until June 2005 — a claim completely at odds with Judge Dorsey's findings.
As to the second count (employment agreement), the plaintiff argues that, contrary to Judge Dorsey's findings, the issue of whether the board had "good and just cause" to terminate the plaintiff is a question to be determined by a jury. Again, referring to his own affidavit, the plaintiff argues that the fact that fewer positions remained after the budget cuts did not mean that people actually lost their jobs and claims that no evidence was offered that anyone other than the plaintiff was actually let go. The plaintiff asserts, per his affidavit, that the board spent more money after the plaintiff was replaced than the amount that would have been spent had he remained in his position. The plaintiff distinguishes Rivers, supra, cited by the defendant, asserting that in that case, the plaintiff agreed that there had been a bona fide reduction in the workforce and that the plaintiff lacked a written employment contract. In this case, plaintiff vehemently contests the claimed reduction in the education workforce in New Britain in 2004, and asserts in his complaint that the budgetary claims and the reference to the human resource study was but a "pretext" to get rid of him and was part of a "scheme" to remove him from his position due to his institution of Barry I six years earlier. Moreover, plaintiff argues that even conceding that a reduction in the workforce may legally constitute just cause for an employee's termination, whether just cause existed in light of his written contract is a question of fact and is not a matter to be decided by summary judgment. Notably, this latter claim is one with which Judge Dorsey obviously disagreed.
The plaintiff's initial position, therefore, was to, in effect, pay little attention to the defendant's preclusion argument and place his reliance on his own affidavit, arguing that the issues as to which agreement was executed first and as to whether the board had just cause for his termination are substantial issues of material fact which are not appropriately resolved by way of summary judgment and ought to be resolved by a jury. In its response to this argument, the board, citing Grignano v. City of Milford, 106 Conn.App. 648, 651 (2008), asserts, as Judge Dorsey found, that the plaintiff has failed to provide an evidentiary foundation in order to contradict and rebut the exhibits submitted by the defendant and thereby establish a genuine issue of material fact. The board argues that the sole basis for the plaintiff's request that the court deny the board's motion is the plaintiff's self-serving affidavit, which Judge Dorsey referred to as "conclusionary statements . . . unsupported by admissible evidence." The board correctly points out that Judge Dorsey, in arriving at his decision to grant summary judgment on all four counts in the federal complaint, reviewed the same depositions, hearing transcripts, affidavits and other documents that are before this court.
On the day that the court had scheduled argument on the defendant's motion, the plaintiff filed a brief (#110), wherein he offered a response to the board's preclusion arguments. Citing Connecticut National Bank v. Rytman, 241 Comm. 24, 44 (1997), the plaintiff asserts that the board's claim preclusion argument is not viable, as the two state counts were dismissed by Judge Dorsey. As to the issue preclusion argument, the plaintiff claims that the federal court never decided the state claims on the merits; thus, the plaintiff never had a fair opportunity to litigate his clients in the federal action. Gladysz v. Planning and Zoning Commission of the Town of Plainville et al., 256 Conn. 249, 262 (2001). As noted herein, during the argument which took place on November 3, 2008, this court stayed further proceedings pending the second circuit's decision on the plaintiff's federal appeal.
VII. The Amendments To The Board's Special Defenses
As noted, on December 31, 2008, the defendant filed a motion (request) to amend its special defenses to insert into the case the issues of res judicata and collateral estoppel. Those issues were then extensively briefed by each of the parties and were the topic of oral argument before this court, both prior to the requested amendment (November 3, 2008), and on October 7, 2009, over three months after the amendment was filed as a separate pleading, without formal objection by the plaintiff as required by Practice Book § 10-60(a)(3). The issues of res judicata and collateral estoppel have been at the crux of this case for in excess of one year. No injustice will be visited upon the plaintiff by the court's recognition and discussion of these issues. In fact, in this court's view, the cause of justice is well served by the court's consideration of the doctrines of claim preclusion and issue preclusion in this case. Tucker v. Pace Investment Associates et al., 32 Conn.App. 384, 391 (1993). In certain circumstances our appellate courts have permitted amendments to pleadings, even after a motion for summary judgment has been filed. Miller v. Fishman, 102 Conn.App. 286, 292-93 (2007), cert. denied, 285 Conn. 905 (2008). The circumstances that form the basis of this case clearly justify and compel this court's consideration of these doctrines.
The relevant portions of that section provide:
a) Except as provided in § 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:
(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by §§ 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by §§ 10-12 through 10-17 and with proof of service endorsed thereon, be filed with the clerk within the time specified above and placed upon the next short calendar list. See Wilcox v. Ferraina, 100 Conn.App. 541, 545-46 (2007).
VIII. Summary Judgment
In Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94 (2008), Judge McLachlan offers an instructive statement of the well-settled law in Connecticut governing summary judgments:
. . . The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . .
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . .
It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.
Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.
A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. (Emphasis added. Internal quotation marks and citations omitted.)
In Little v. Yale University, 92 Conn. 232, 235 (2005), cert. denied, 276 Conn. 936 (2006), the court instructed as follows: "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting summary judgment, assuming that the movant has met his burden of proof . . ." (Emphasis added.) Summary judgment is the appropriate vehicle by which a party may raise and relative to which a trial court may address the issues of res judicata and collateral estoppel. Lyon v. Jones, 291 Conn. 384 (2009).
IX. Res Judicata and Collateral Estoppel A. In General
As noted, the defendant argues that the doctrine of collateral estoppel should operate to prevent the plaintiff from seeking a trial in this court of the same issues that were finally decided by the federal courts. In the case of Daw v. Zoning Board of Appeals of Westport, 63 Conn.App. 176, 181-83, 772 A.2d 775, cert. denied., 256 Conn. 931 (2001), the appellate court explained the doctrines of res judicata and collateral estoppel, their differences and their applications as follows:
Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding . . .
The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.
[R]es judicata should be applied as necessary to promote its underlying purposes. These purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. (Citations omitted; emphasis in original; internal quotation marks omitted.)
"Collateral estoppel is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction." Tuchman v. State, 89 Conn.App. 745, 762, n. 7, cert. denied, 275 Conn. 920 (2005).
CT Page 8676
B. Collateral Estoppel — Issue Preclusion
In a recent statement of the "fundamental principles" on this issue, our supreme court instructed: "The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment . . . An issue is actually litigated if it is properly raised in the pleadings, or otherwise submitted for determination, and in fact determined . . . 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action." Lyon v. Jones, 291 Conn. 384, 406 (2009). Internal citations omitted.In Mount Vernon Fire Insurance Co. v. Morris, 90 Conn.App. 525, 534-35, cert. granted on other grounds, 276 Conn. 907 (2005), the appellate court, after referring to the two doctrines as "related ideas on a continuum," explained: "The fundamental principles underlying the doctrine are well established. Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. Like res judicata, collateral estoppel is based on the public policy that a party should not be able to re-litigate a matter that it already has had a fair and full opportunity to litigate." (Citations omitted; internal quotation marks omitted.). In Sydoriak v. Zoning Board of Appeals of the Town of Prospect, 90 Conn.App. 649 (2005), the appellate court addressed the doctrine of collateral estoppel. Judge Dranginis observed: "Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and CT Page 8677 finally decided, it comes to rest. (Emphasis added.) Id., at pages 655-56.
Connecticut courts have followed the principles set forth in the Restatement, which, inter alia, provides that an issue is "actually litigated" if properly raised in the pleadings or otherwise submitted for determination and is, in fact, determined. An issue is "necessarily determined" if, in the absence of its determination, a valid judgment could not have been rendered. Restatement (Second) Judgments 27, comment (d) 1982. See also Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 714-15 (1993).
In the federal district court action the plaintiff's federal claims were based upon age discrimination and retaliation, while his state claims were founded upon allegations of breach of the employment agreement and breach of the settlement agreement. All of the relevant issues were properly raised in the pleadings in both venues. The allegations in the two state counts in the action before this court are virtually identical to those addressed by Judge Dorsey. This court, therefore, agrees with the board that the case before this court is of the same character, involves the same parties, raises the same issues and seeks the same result as that which resulted in Judge Dorsey's summary judgment and the second circuit's affirmation thereof. The federal court, at the trial level and the appellate level, "necessarily determined" that the board's stated reasons for the termination of the plaintiff, i.e., the budgetary reductions and the human resources study, were good and just cause and were consistent with the termination provisions of the employment contract.
As to the breach of settlement agreement, Judge Dorsey found, after his detailed findings relative to the retaliation count, that the plaintiff's claim that the board breached the settlement agreement was essentially a "variation of the retaliatory claim." Moreover, Judge Dorsey ruled as a matter of law that the employment agreement, by its very terms, superseded the settlement agreement. Thus, as to the plaintiff's first count in this state action, there is no question that it is based upon the same operative facts as the federal retaliatory claim. As to the breach of employment count, in the absence of the findings by Judge Dorsey that the mandated budget reductions and the inefficiencies of the plaintiff's position, as demonstrated by the human resources study, justified the board's actions in eliminating the plaintiff's position and in not rehiring him for the director's job, no judgment could have been validly entered by the federal district court. The determination of those issues was a necessary component in granting summary judgment in the federal case and is likewise a necessary component for an appropriate disposition of this case. This court, therefore, agrees with the board's claim that issues identical to those in the state case were not only raised in the federal action, but were actually litigated and decided in that action. The plaintiff clearly had a full and fair opportunity to present those issues and to thoroughly litigate them. The resolution of the issues so presented was necessary to support a valid and final judgment as affirmed by the second circuit.
The plaintiff argues that separate and distinct issues were presented to Judge Dorsey and that, as a result of vacating the summary judgments entered on the state counts, neither the district court nor the second circuit finally decided the issues found upon the breach of the two agreements. The crux of the plaintiff's case, both in the federal court and in this court, is the claim that the budgetary and efficiency report reasons offered by the board for his termination and the board's failure to rehire him were simply a pretext to justify the board's discriminatory and retaliatory conduct. The plaintiff asserts that the board's proffered reasons are simply a cover up for the real reason for his termination — his institution of Barry I ten years ago. The federal court thoroughly addressed this crucial issue and found no justification for this claim and full justification for the plaintiff's termination and lack of rehire. The federal district court had before it the same issues, based upon the same historical facts as are before this court. But for three non-persuasive exceptions, to be hereinafter addressed, the federal district court had before it the same exhibits as have been presented to this court. With regard to the breach of contract claims (employment and settlement agreement), the federal district court entered a valid judgment based upon well articulated reasons on issues that are identical to those raised by the plaintiff in this case. The doctrine of collateral estoppel precludes those issues, bars this court from considering them again, and compels this court to enter a summary judgment on both counts.
Citing Gladysz v. Planning and Zoning Commission of Plainville, 256 Conn. 249, 262 (2001), Connecticut National Bank v. Rytman, 241 Conn. 24, 44 (1997), and the Restatement (Second), Judgments, the plaintiff argues that he never had a fair opportunity to litigate the so-called state claims in the federal action. In referring to Section 25, comment (e), the supreme court, in Rytman, explained: Under this test, "[w]hen the plaintiff brings an action on [a] claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be precluded." (Emphasis added.)
As detailed herein, however, Judge Dorsey did not decline to consider the plaintiff's breach of contract claims. Quite the contrary, he did consider and finally decided, each of those claims, albeit, not in the manner anticipated by the plaintiff. During oral argument before this court on October 7, 2009, counsel for the board correctly pointed out that Judge Dorsey, "examined, he reviewed, he considered, he assessed, he weighed all the evidence, all the relevant law and determined that [with regard to] these two contract claims, there was no basis for them." It was the plaintiff, who requested the dismissal of those claims after the fact. The plaintiff's argument presupposes that two separate and distinct theories or issues were presented by him to Judge Dorsey, one which was decided by that court, while the other was not decided as the decision was, at the plaintiff's request, subsequently vacated. The plaintiff's reliance on the Restatement in this regard is misplaced, as the federal district court had before it the same issues, based upon the same operative facts as are before this court. In resolving the issues in the federal or state court, as previously herein discussed, the governing legal precedent that compelled Judge Dorsey to grant the defendant's motion for summary judgment is the same legal precedent that governs this court's determination of a similar motion. The case before this court is based upon the same facts and presents the same issues that were actually litigated and necessarily determined by the federal district court.
C. Res Judicata-Claim Precision
Although the doctrines of collateral estoppel and res judicata are conceptually related, in practice their application may yield distinct results. Unlike collateral estoppel, under which preclusion occurs only if a claim actually has been litigated, "[u]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim [or any claim based on the same operative facts that] might have been made . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding. (Citations omitted; emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Rytman, supra, 241 Conn. 43-44. "The rule of claim preclusion prevents reassertion of the same claim, regardless of what additional or different evidence or legal theories might be advanced in support of it." Sotavento Corporation v Coastal Pallet Corporation, 102 Conn.App. 828, 834 (2007). (Emphasis included.) In referring to the Restatement's "transaction test," the appellate court explained:
We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a transaction, and what groupings constitute a series, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage . . . In applying the transactional test, we compare the complaint in the second action with the pleadings and the judgment in the earlier action. (Internal quotation marks omitted.)
Id., at pages 834-35.
Under the doctrine of res judicata, "a judgment is final, not only as to every matter, which was offered to sustain the claim, but also as to any other admissible matter, which might have been offered for that purpose." Morganti, Inc. v. Boehringer Ingelheims Pharmaceuticals, Inc., 20 Conn.App. 67, 72, 563 A.2d 1055 (1989). (Emphasis added.)
As previously referred to herein, Judge Dorsey had before him, but for three exceptions, the same exhibits that have been submitted by the parties to this court. Plaintiff's Exhibit A, dated September 22, 2008, is a self-serving affidavit which challenges the board's claim that the elimination of his position saved money. In it, the plaintiff asserts that the board produced no evidence that anyone other than the plaintiff was actually terminated. Notably, the plaintiff did not provide such evidence, either to Judge Dorsey or to this court. Plaintiff's Exhibit G is the affidavit submitted by Attorney Gesmonde, offered as expert testimony that pursuant to employment law, budgetary reductions do not constitute just cause for termination. As earlier noted herein, Judge Dorsey disagreed, citing "well-established" precedent. The issue presents a matter of law, not a matter of fact, material or otherwise. Accompanying the plaintiff's memorandum, which he submitted to this court on June 15, 2009, was a third item, which was not before Judge Dorsey. In a four-paragraph affidavit executed on June 11, 2009, the plaintiff seems to be instructing the court that the elimination of a position, "does not necessarily mean people will be laid off" and avers that in the 2004-2005 academic year, a number of individuals were called back after temporarily being laid off and that no one except the plaintiff actually lost his or her job. Both of the aforementioned affidavits offered by the plaintiff are problematic to the plaintiff's objection to the board's motion or summary judgment for two reasons.
First and foremost, the self-serving statements are, as Judge Dorsey found, based on conclusions, conjecture and speculation and are, therefore, not sufficient to provide a basis for finding the existence of a genuine issue of material fact. In this court's view, the two affidavits submitted after the decision rendered by the federal court, do not provide the evidentiary foundation and concrete evidence necessarily required by both federal and Connecticut courts to negate the granting of the defendant's motion. Little v. Yale University, supra, 92 Conn. 235.
Secondly, there has been no explanation offered by the plaintiff as to the reason why such affidavits were not presented to Judge Dorsey. Clearly, all of the information and instruction provided therein by the plaintiff could have been provided, and in fact and in law, should have been submitted to Judge Dorsey. For reasons known only to the plaintiff and his attorney, a decision was made not to present such information at that time and in that venue. The factual basis for the plaintiff's assertions was clearly available for submission to the federal court well before the decision rendered by Judge Dorsey on December 22, 2006. The plaintiff, via depositions of other employees, budgetary and employment records, and affidavits from those whose positions were eliminated, could have provided the federal court with the requisite underlying concrete evidence that would, arguably, support the conclusionary statements offered by the plaintiff. Clearly, the factual information was available to the plaintiff at the beginning of the 2004-2005 academic year. Such facts, properly presented, could have been included in Judge Dorsey's consideration of the material facts that impacted his decision. The plaintiff, therefore, had an adequate opportunity to fully litigate his claims of breach of contract based upon his underlying claim of pretextual termination and chose not to submit to the federal court that which he now submits to this court. The doctrine of res judicata serves as a bar to his doing so in this court and provides an additional justification to grant the board's motion for summary judgment.
X. The Impact of the Second Circuit's Affirmation CT Page 8682
As mentioned herein, on November 24, 2008, via a summary order, a three-judge panel of the United States Court of Appeals for the Second Circuit affirmed Judge Dorsey's decision on the federal age discrimination and retaliation counts. In doing so, the court specifically addressed the board's unquestionable discretion to hire a director of human resources who, unlike the plaintiff, possessed a law degree. Based upon this specific discussion by the federal appellate court, the plaintiff asks this court to completely ignore the proceedings that took place before Judge Dorsey and to totally disregard any of his findings. Citing Scalzo v. Danbury, 224 Conn. 124, n. 5, (1992), the plaintiff asserts that the opinion issued by the second circuit is based upon an entirely different factual ground than that issued by Judge Dorsey. As plaintiff's counsel put it during oral argument on October 7, 2009, Judge Dorsey's opinion should be considered " meaningless." Plaintiff's attorney later added that "the second circuit's decision, in so far as it has preclusive impact on this case, is also irrelevant, because the issue of pretext is not an issue in this case."As this court has repeatedly stated throughout this memorandum, the issue of "pretext" is the central issue and the crux of not only this state case, but of the plaintiff's federal action, i.e., Barry II. In fact, after "assuming arguendo" that the plaintiff had established a prima facie case under each of the federal counts, the second circuit, nonetheless, opined that the plaintiff's claim would fail as he was unable to show that "the Board's proffered explanations" for both the plaintiff's termination and his lack of rehire were either "pretextual" or "retaliatory." Clearly, the federal appellate court, as did Judge Dorsey and as does this court, considered the issue of "pretext" to be the core issue in the federal action. The resolution of that issue was the basis of Judge Dorsey's entry of summary judgment on all four counts in the plaintiff's federal complaint and was the basis upon which the second circuit affirmed the district court's decision. Moreover, the plaintiff, both in his federal complaint (Part III, Paragraph #22) and in the complaint before this court (Paragraph #11 of each count), employs the term "pretext" as the label for the board's alleged reckless, wanton and malicious conduct in implementing its "scheme" (a term also used in both complaints) to get rid of him.
Although the second circuit court chose to discuss the issue of the lack of a law degree and management prerogative and did not choose to undertake a discussion of those issues thoroughly addressed by the lower court, the second circuit specifically based its decision on the panel's consideration of the "record as a whole," citing Reeves v. Sanderson Plumbing Prod, Inc., 530 U.S. 133, 151 (2000). In that case, the supreme court instructed that when a court reviews the record as a whole, it "must draw all reasonable inferences in favor of the non-moving party . . ." and it "should give credence to the evidence favoring the nonmovant, as well as that evidence supporting the moving party that is uncontradicted and unimpeached . . ."
Following this instruction, the federal appellate court, obviously well aware of the factual and legal basis upon which Judge Dorsey entered summary judgment, affirmed his decision. For the foregoing reasons, this court finds that the principles of equitable estoppel and res judicata are equally applicable to the second circuit's final decision in the federal action. Those doctrines, as hereinbefore discussed, are, therefore, a bar to the plaintiff's state action, which arises out of the same operative facts, invokes the same issues, involves the same parties and demands the same relief as Barry II. To paraphrase Judge Dranginis, those doctrines mandate that this case must finally come to an end!
XII. Summary Judgment-Revisited
This court first read Judge Dorsey's decision in October 2008, and since that time has reviewed, highlighted and fully digested it. Each time the decision was reviewed, this court concluded that Judge Dorsey possessed an excellent grasp of the factual background and had thoroughly examined the exhibits submitted by both sides. This court also concluded that the federal issues appeared to be inextricably connected to the state issues, the latter of which Judge Dorsey chose to address and to dispose of via his agreement with the board that it was entitled to summary judgment. This court, again, was reminded that the standard followed by our state trial courts in dealing with a motion for summary judgment is substantially similar to that followed by the federal courts and, obviously, followed by Judge Dorsey in the federal case.
Considering the foregoing, and having some familiarity with the doctrines of res judicata and collateral estoppel, this court, in addressing the board's motion and the plaintiff's objection thereto in this case, proceeded to thoroughly review the exhibits submitted by the parties, including the three items submitted by the plaintiff to this court which were not offered to Judge Dorsey. As discussed herein, the two affidavits authored by the plaintiff and that provided by Attorney Gesmonde do not satisfy the summary judgment standard, which requires the nonmoving party to provide such concrete evidence that would establish the existence of a genuine issue of material fact. This court does not believe that those three affidavits would have altered Judge Dorsey's decision in any respect, as the former are based on conclusions and conjecture, while the latter is based upon legal opinion, which is the prerogative of the court and does not raise an issue of fact.
Having read Judge Dorsey's opinion for the first time in October 2008, this court was impressed with its thoroughness, its articulation of the relevant facts, and its well-founded conclusion. Having reviewed all of the exhibits Judge Dorsey had before him in addition to the three referred to above, this court has reached the same result and finds that the plaintiff has failed to provide the requisite evidentiary foundation to support a denial of the board's motion. Obviously, a simple "ditto" reference by this court to Judge Dorsey's decision would not be an appropriate disposition of the plaintiff's case, now pending in this court, particularly in light of the hard work done and professionalism and patience exhibited by counsel for both parties. Thus, this lengthy memorandum. This court, however, does agree with every aspect of Judge Dorsey's decision, a decision with which the United States Court of Appeals also agrees. This court likewise finds that there is no genuine issue of material fact to be determined by a trier of fact. Therefore, irregardless of the applicability of the doctrines of res judicata and collateral estoppel, summary judgment is warranted.
XIII. Conclusion and Order
Based upon the foregoing the Motion For Summary Judgment (#105) filed by the defendant, New Britain Board of Education is GRANTED. Judgment may enter accordingly.