Opinion
Civil Action 21-cv-02362-RM-MEH
05-03-2022
MELEAHA R. GLAPION-PRESSLEY, Plaintiff, v. CITY AND COUNTY OF DENVER, DENVER DEPARTMENT OF HUMAN SERVICES, and CAREER SERVICE HEARING OFFICE AND BOARD, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6). ECF 11. Plaintiff brings this lawsuit against the City and County of Denver (“Denver”), its Department of Human Services (“DDHS”), and its Career Service (“CS”) Hearing Office and Board. Defendants move for dismissal on the basis of res judicata. The Motion is fully briefed, and the Court finds that oral argument will not materially assist in its adjudication. Based upon the record herein and for the reasons that follow, the Court respectfully recommends that the Motion be granted.
BACKGROUND
For purposes of this ruling, the Court accepts as true the factual allegations-but not any legal conclusions, bare assertions, or conclusory allegations-that Plaintiff raises in her Complaint. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (accepting as true a plaintiff's factual allegations for purposes of Fed.R.Civ.P. 12(b)(6) analysis). Because they add context and detail to her Complaint, the Court includes the allegations and arguments that Plaintiff raises in her several responses in opposition to Defendant's Motion to Dismiss. Additionally, the Court considers documents provided in Plaintiff's closely related prior lawsuit [No. 19-cv-02806-RM-MEH]. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (noting that courts may consider “matters of which a court may take judicial notice” on a motion to dismiss); United States v. Estep, 760 F.2d 1060, 1063 (10th Cir. 1985) (“Judicial notice is particularly applicable to the court's own records of prior litigation closely related to the case before it.”). The Court considers these records only to show their contents, not to prove the truth of matters asserted therein.
I. Plaintiff's Employment Termination
Plaintiff was a social caseworker in the child welfare division for DDHS from April 25, 2016, to December 7, 2018. ECF 1 ¶ 2. On July 18, 2018, Plaintiff's supervisor, Kathryn Hodson (“Hodson”), assigned Plaintiff and another caseworker to investigate a fatality of a two-year-old girl and a near-fatality of another child. Id. ¶ 11. During the investigation, Plaintiff was required to work considerably more hours than her usual ten-hour workday, including working overnight on one occasion. Id. ¶¶ 14-27. The following week, Hodson instructed Plaintiff to go to the children's home and provide their great grandfather with a copy of a safety plan. Id. ¶ 31. Plaintiff alleges that while she was at the home, severe weather and flash flooding prevented her from leaving. Id. ¶ 32. When she eventually returned to the office, Plaintiff was “orally admonished” by Hodson for her late arrival. Id.
After this incident, Plaintiff's time with DDHS was marked by conflict between herself and Hodson. For example, the day after Hodson reprimanded her, Plaintiff sought to utilize sick leave, but Hodson allegedly responded with “threatening” messages demanding she come into work. Id. ¶ 33. At some point during this exchange, Plaintiff emailed administrators in Denver's Human Resources Center (an entity separate from DDHS) and accused Hodson of “time fraud.” Id. ¶ 35. A month later, Plaintiff filed a whistleblower complaint with Denver's Fraud and Financial Misconduct Services against Hodson, again asserting that she committed time fraud. Id. ¶ 40. Two months later, Hodson disciplined Plaintiff for missing a non-mandatory training while she was on sick leave. Id. ¶¶ 71-74. Another employee had missed the same training, but she was not disciplined. Id. ¶¶ 75-76. Days later, Plaintiff filed a second whistleblower complaint with Denver's Fraud and Financial Misconduct Services against Hodson. Id. ¶ 46.
Towards the end of this time, Hodson began coordinating with Denver's Human Resources Center to discipline and, later, terminate Plaintiff's employment. Id. ¶¶ 42, 44. The Human Resources Center emailed Plaintiff several notices contemplating disciplinary action. Id. ¶¶ 79, 81. Human Resources then placed her on involuntary leave from November 5 to December 7, 2018. Id. ¶¶ 55-59. When Plaintiff returned to the office on December 7, 2018, several Human Resources and DDHS administrators, including Hodson, called Plaintiff into a meeting and fired her. Id. ¶ 60. Plaintiff claims that her discipline and subsequent termination were pretextual, retaliatory, and discriminatory based on Plaintiff's identifying as a Black-Latina Christian mother. Id. ¶¶ 3-6, 61.
II. Plaintiff's Career Services Appeals and State Court Lawsuit
Denver allows its employees to appeal adverse actions and terminations to the CS Hearing Office. Id. ¶ 48. Plaintiff filed three appeals, on November 7, November 27, and December 10, 2018, to the CS Hearing Office for her suspension and subsequent termination. Id. During her appeal, Plaintiff had the opportunity to engage in discovery and present evidence at a hearing. Id. ¶ 67. The hearing was held across several days before a CS hearing officer, during which Plaintiff called and cross-examined witnesses, presented evidence, and testified. Id. ¶ 94. After considering the evidence presented, the hearing officer affirmed Plaintiff's suspension and termination in a written decision emailed to the parties. Id.
Additionally, Denver provides a procedure to appeal a Hearing Office decision to the CS Board. Id. Plaintiff appealed the hearing officer's decision, alleging a litany of violations of the Hearing Office's procedures. Id. ¶¶ 93-94. During this appeal, Plaintiff had the opportunity to submit several briefs to the CS Board. Id. ¶ 95. Based on the briefs, the CS Board upheld the hearing officer's decision. Id. ¶ 95.
On September 11, 2020, after exhausting her administrative appeals, Plaintiff brought an action in the Denver District Court against Denver as well as its CS Hearing Office and Board pursuant to C.R.S. § 24-4-106 for judicial review of the agency decision. ECF 22 at 9. She alleged that the CS Board and Hearing Office acted ultra vires, abused their discretion, and violated the Colorado and federal constitutions, along with several state and federal statutes. Id. at 10-11. That lawsuit is ongoing. Id. at 8-9.
III. Plaintiff's EEOC Charge and First Federal Lawsuit
While Plaintiff was appealing her suspension and termination with the CS Hearing Office and Board, she contacted the Equal Employment Opportunity Commission (“EEOC”) and filed a discrimination charge against DDHS, alleging various claims of discriminatory, retaliatory, and harassing acts against her. ECF 1 ¶¶ 96-97. Plaintiff drafted the charge herself and signed it, but she failed to properly verify it in accordance with 28 U.S.C. § 1746 and 29 C.F.R. § 1601.3. Id.; see Glapion-Pressley v. City & Cnty. Of Denver, Dep't of Hum. Servs., No. 1:19-cv-02806-RM-MEH, 2020 WL 7130094, at *3-5 (D. Colo. Sept. 9, 2020) (“Glapion-Pressley I”). The EEOC interviewed Plaintiff and emailed her a pre-drafted formal charge to correct the faulty verification, but she did not respond. ECF 1-1 at 8. After several months, the EEOC notified her that it had not received the corrected charge, so no further action would be taken in the case. Id. The EEOC closed her case and issued her a right-to-sue letter. Id.
Relying on the right-to-sue letter, Plaintiff filed suit in this federal Court (the District of Colorado) against Denver and DDHS on October 1, 2019, alleging Title VII violations and a state whistleblower claim. Id. Jointly as one defendant, Denver and DDHS moved to dismiss Plaintiff's claims. Glapion-Pressley I, 2020 WL 7130094 at *1 & n.1. The undersigned recommended dismissing Plaintiff's action because, as previously stated, Plaintiff had failed to properly verify her charge of discrimination. Id. at *5. The Recommendation suggested declining to exercise supplemental jurisdiction over Plaintiff's remaining state law claim. Id. District Judge Moore accepted the Recommendation and granted the defendant's motion to dismiss. Glapion-Pressley I, 2020 WL 6042093, at *2 (D. Colo. Oct. 13, 2020).
On October 9, 2020, Plaintiff tried to cure her faulty verification by completing and submitting the formal charge the EEOC had previously emailed to her. ECF 1-1 at 8. She intended to amend her initial charge by submitting the formal charge. Id. She then purported to invoke 29 C.F.R. § 1601.12(b) to relate the amendment back to the date of the original filing. Id. After submitting the formal charge to the EEOC, she filed a Fed.R.Civ.P. 60(b) motion to vacate the dismissal and reopen Glapion-Pressley I, arguing that the purported amendment was new evidence that cured her prior failure to verify. Glapion-Pressley I, 2021 WL 2184829 (D. Colo. May 28, 2021). District Judge Moore disagreed, finding that a charge of discrimination cannot be amended after the EEOC had closed the case and issued a right-to-sue letter. Id. at *2. Plaintiff appealed to the Tenth Circuit. ECF 22 at 8. On April 14, 2022, the Tenth Circuit affirmed the District Court's dismissal. Glapion-Pressley I, No. 21-1223, 2022 WL 1112965 (10th Cir. 2022).
IV. Plaintiff's Present Federal Lawsuit
On April 8, 2021, Plaintiff requested a new right-to-sue letter from the EEOC based on the formal charge she submitted on October 9, 2020. ECF 1 ¶ 105. It appears that the EEOC did not take any action on the charge because the case had already been closed before the EEOC issued the first right-to-sue letter. ECF 1-1 at 8. Nonetheless, Plaintiff received a new right-to-sue letter on June 4, 2021 (ECF 1 ¶ 108), and subsequently, she brought the current action based on this second letter.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts that allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, a court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, then the claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
II. Treatment of a Pro Se Plaintiff's Complaint
A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [A] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interprets this rule to mean, if a court “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). That does not mean, however, that a court should “assume the role of advocate for the pro se litigant.” Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (“[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.” (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989))).
ANALYSIS
Plaintiff's Complaint brings claims for Title VII and FLSA violations against Defendants Denver and DDHS. Plaintiff also seems to bring a claim against Denver's CS Board and Hearing Office for violation of her procedural and substantive due process rights secured by the Colorado Constitution and the Fourteenth Amendment of the United States Constitution. Defendants seek dismissal of the claims against them on the basis of res judicata. They argue that Glapion-Pressley I precludes her current claims because they amount to litigating issues that were already resolved.
To the extent Plaintiff requests sanctions for Defendants' alleged inadequate conferral, the Court recommends denial of such sanctions. While D.C.Colo.LCivR 7.1(b)(2) exempts from the duty to confer Fed.R.Civ.P. 12(b) motions to dismiss, District Judge Moore instructs that “[m]ovants should confer before filing [a Rule 12(b)] motion.” J. Moore's Civ. Prac. Standards IV.N.2(a). Defendants describe their attempt to confer through email, which consisted of more than just informing Plaintiff that they were filing the Motion to Dismiss but also inviting clarification and an amended complaint to cure any deficiencies. ECF 24 at 1-2. Defendants thereby satisfied J. Moore's Civ. Prac. Standards IV.N.2(a).
I. Res Judicata
Res Judicata bars re-litigation of issues that were or could have been the subject of a previously issued final judgment. King v. Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997). Three elements must exist in order to apply the doctrine: “(1) a judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.” Id. “[E]ven if these three elements are satisfied, there is an exception to the application of claim preclusion where the party resisting it did not have a ‘full and fair opportunity to litigate' the claim in the prior action.” Johnson v. Spencer, 950 F.3d 680, 693 (10th Cir. 2020) (quoting Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (internal quotations omitted)).
A dismissal for failure to state a claim under Rule 12(b)(6) is a “judgment on the merits to which res judicata applies.” Spencer, 950 F.3d at 719 (quoting Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002) (internal quotations omitted)). Further, as previously stated, the Tenth Circuit recently affirmed this Court's decision. Plaintiff does not dispute this. Rather, she argues that because her first lawsuit was dismissed without prejudice, it was not a final judgment. This Court rejects Plaintiff's argument for two reasons. First, the Court only dismissed without prejudice Plaintiff's state law whistleblower claim. Glapion-Pressley I, 2020 WL 7130094 at *8. The Court did so after dismissing with prejudice Plaintiff's federal claims. Id.; see Slocum v. Corp. Express U.S. Inc., 446 F. App'x. 957, 960 (10th Cir. 2011) (“Rule 12(b)(6) dismissals, unless otherwise indicated, constitute a dismissal with prejudice.”). Moreover, whether claims were dismissed without prejudice has no legal effect on the application of res judicata. Plaintiff's argument equates “without prejudice” with not being a final judgment on the merits. However, courts often utilize a dismissal without prejudice to allow a party to cure a deficient pleading with an amendment within that case. Sullivan v. DaVita Healthcare Partners, Inc., No. 18-cv-01589-MSK-NYW, 2018 WL 4635965, at *3 (D. Colo. Sept. 27, 2018). Regardless, a Rule 12(b)(6) dismissal affirmed on appeal is a judgment on the merits in a separate case for res judicata purposes. Slocum, 446 Fed.Appx. at 960. Applying those principles here, the prior Glapion-Pressley I lawsuit ended with a final judgment on the merits for res judicata purposes.
As for the second element, there is no question that Denver and DDHS were named parties in Glapion-Pressley I. However, unlike Glapion-Pressley I, Plaintiff has added Denver's CS Board and Hearing Office as a Defendant in this case. Defendants argue that res judicata nonetheless applies because the added party is in privity with Denver and DDHS. The Court agrees.
“Privity requires, at a minimum, a substantial identity between the issues in controversy and showing the parties in the two actions are really and substantially in interest the same.” Lowell Staats Mining Co. v. Phila. Elec. Co., 878 F.2d 1271, 1275 (10th Cir. 1989). There is no one definition of privity that automatically applies to all cases involving res judicata. Id. Instead, courts should engage in a case-by-case analysis to determine whether the entities are “really and substantially in interest the same.” Id. Parties have been found to be substantially in interest the same “if the parties were functionally or nearly acting as one.” See Lenox, 847 F.3d at 1241 (quoting Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1275 (10th Cir. 1995) (internal quotations omitted)).
Considering the facts in this case, it is apparent that Denver, DDHS, and the CS Board and Hearing Office functioned as one single entity in Plaintiff's employment termination. As previously stated, Plaintiff was notified of and placed on her unpaid suspension by Denver's Human Resource Center. ECF 1 ¶¶ 54-62. Denver's Human Resources Center and DDHS jointly met with her during the termination meeting, and it appears that they acted together in terminating her employment. Id. Plaintiff appealed her termination through the Human Resource Center's CS Hearing Office and, subsequently, its Board as an internal grievance process. The parties were functionally acting as one entity throughout Plaintiff's termination. This is sufficient to establish privity for purposes of res judicata.
The Court next considers whether there exists an identity of the cause of action in both suits. The Tenth Circuit takes a transactional approach to this element, which requires courts to consider whether the suit at hand arises “out of the same ‘transaction, or series of connected transactions'” as the previous suit. Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir. 2000) (quoting Restatement (Second) of Judgements § 24 (1982)). Courts should analyze the two suits pragmatically and consider factors such 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.” Id.
Both Glapion-Pressley I and this suit involve Plaintiff's employment termination. Further, the Complaint substantially mirrors her operative complaint filed in Glapion-Pressley I. Her first four claims for relief in this suit are nearly identical to the claims for relief brought previously. Thus, res judicata bars this suit to the degree that it is based on the same cause of action as before. Even so, Plaintiff argues that res judicata does not bar her claims for continuous Title VII violations, FLSA violations, and various constitutional violations. This Court must determine whether these new claims fall under the same transaction or series of transactions as that in Glapion-Pressley I.
In employment claims, the Tenth Circuit has consistently held that all claims arising from the same employment relationship constitutes the same transaction or series of transactions for res judicata purposes. Wilkes v. Wyo. Dep't of Emp. Div. of Lab. Standards, 314 F.3d 501, 504 (10th Cir. 2002); Mitchell, 218 F.3d at 1202; Yapp v. Excel Corp., 186 F.3d 1222, 1228 (10th Cir. 1999); Clark v. Haas Grp., Inc., 953 F.2d 1235, 1239 (10th Cir. 1992). Both Plaintiff's continuous Title VII violation and her FLSA claims clearly fall within the same employment relationship to constitute the same transaction or series of transactions. Though Plaintiff describes her claim for Title VII violations as continuing in this suit, her Complaint contains no well-pleaded facts of any conduct by DDHS that occurred after she brought Glapion-Pressley I. In short, the facts pleaded to support Plaintiff's present claim for continuing Title VII violations all occurred in the same transaction as those facts in Glapion-Pressley I. Similarly, Plaintiff's FLSA claim concerning her lack of payment during her suspension occurred in the same transaction as well.
A closer issue is whether the due process claims against the CS Hearing Office and Board fall under the same transaction or series of transactions as Plaintiff's previous claims. Gale v. City & Cnty. of Denver, No. 16-cv-02436-MSK-KMT, 2018 WL 2463242 (D. Colo. June 1, 2018) provides persuasive guidance. There, the plaintiff was terminated from his employment with the City and County of Denver. Id. at *1. He appealed his termination decision to the state CS Hearing Office and, when they affirmed his termination, to the CS Board. Id. at *2. After the Board affirmed the plaintiff's termination, he brought an action in state court for judicial review of the agency action. Id. Around the same time, he brought an action in federal court, arguing that his termination violated his First Amendment rights. Id. While the federal action was pending, the state court ruled in Denver's favor Id. Denver subsequently raised res judicata as a defense in the federal action. Id. Under the transactional approach, the court found that the CS appeals process and the First Amendment claim arose from the same transaction or series of transactions because they both arose from the same injury: plaintiff's discharge. Id. Similarly here, Plaintiff's claim against the CS Hearing Office and Board arise under the same injury as her prior Title VII claim: her employment termination. Thus, there is identity of claims between Plaintiff's claims against the CS Board and Hearing Office and those in Glapion-Pressley I.
As noted above, even where the requisite elements of claim preclusion are present, its application is inappropriate if “the party seeking to avoid preclusion did not have a full and fair opportunity to litigate the claim in the prior suit.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (internal quotations omitted). “The primary concern is that the prior judgment was procured in a manner that satisfies due process.” Id. The fairness of the prior proceeding “is determined by examining any procedural limitations, the party's incentive to fully litigate the claim, and whether effective litigation was limited by the nature or relationship of the parties.” Nwosun v. Gen. Mills Rest., Inc., 124 F.3d 1255, 1257-58 (10th Cir. 1997). Contrary to Plaintiffs assertions, the record from Glapion-Pressley I indicates that Plaintiff had a full and fair opportunity to litigate her claims.
Plaintiff primarily argues that this Court in Glapion-Pressley I reached an erroneous conclusion in finding that she had not verified her Title VII charge and, after she had purported to amend her discrimination charge, holding that the new filing could not amend an already closed charge. However, these arguments go to the merits of the Court's decision, which Plaintiff appealed. The merits of a decision do not “deprive the defendants in the second action of their right to rely upon the plea of res judicata.” Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). In other words, a judgment, even one “based upon an erroneous view of the law, is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause of action.” Id. Additionally, as previously noted, the Tenth Circuit affirmed the Court's decision. Therefore, the Court rejects this argument.
As to any claimed procedural obstacle, the Tenth Circuit has made clear that “it is enough for full-and-fair-opportunity-to-litigate purposes that the litigant had a full and fair opportunity to contest the procedural obstacle that ostensibly barred meaningful consideration of h[er] claims.” Spencer, 950 F.3d at 710. Plaintiff had an opportunity to litigate the procedural defect in her original Title VII claim in Glapion-Pressley I at the motion to dismiss stage, the motion for reconsideration, and through the federal appeal. Plaintiff has certainly “had [her] day in court on these issues and a final judgment entered thereon. [She] cannot relitigate them.” Id.; see also Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 (10th Cir. 2014) (“We have found a party ‘cannot now complain that it did not have a full and fair opportunity to litigate the issue [when] [i]t asked the [prior] court to decide the issue in its brief, and it argued its position extensively' in the prior proceeding.” (alterations in original) (quoting Murdock v. Ute Indian Tribe of Uintah & Ouray Rsrv., 975 F.2d 683, 690 (10th Cir. 1992))). Further, the parties had the incentive to properly litigate the issues, and the nature and relationship between parties did not undermine the proceeding's fairness.
The doctrine of res judicata applies as a bar to all of Plaintiff's claims. Consequently, Defendants' Motion to Dismiss should be granted in full. Moreover, because the claims are subject to res judicata, the dismissal should be with prejudice. Massey v. Computershare Ltd., No. 21-cv-0601-WJM-SKC, 2021 WL 5810720, at *9 (D. Colo. Dec. 7, 2021); Carmichael v. Allbaugh, No. CIV-20-109-D, 2020 WL 6491660, at *4 (W.D. Okla. Nov. 4, 2020).
II. Abstention
To any extent res judicata does not require dismissal of Plaintiff's claim for constitutional violations against the CS Board and Hearing Office, the Court recommends abstaining from exercising jurisdiction over these claims. As previously stated, Plaintiff has an ongoing case in the Denver District Court for judicial review of the CS Board and Hearing Officer's determination regarding her employment termination. Such review includes determining whether the Board and Hearing Office's decision was a violation of “any constitutional right, power, privilege, or immunity.” C.R.S. § 24-4-106(7)(b)(III).
Generally, “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). “This duty is not, however, absolute.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 709 (1996). Based upon principles resting on “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, ” a federal court may dismiss an action proceeding concurrently with a state court action. Colo. River, 424 U.S. at 817 (citation and internal quotations omitted). “It is well-established that federal courts have the power to refrain from hearing, among other things, cases which are duplicative of a pending state proceeding. This latter principle-the avoidance of duplicative litigation-is at the core of the Colorado River doctrine.” D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1233 (10th Cir. 2013) (citation and internal quotations omitted). The Tenth Circuit has held that a district court determining the application of the doctrine must engage in a two part inquiry: (1) the court must determine whether the state and federal proceedings are parallel; and if so, (2) it should consider whether “exceptional circumstances” suffice to defer to the state proceedings. Allen v. Bd. of Educ., Unified Sch. Dist. 436, 68 F.3d 401, 403 (10th Cir. 1995); Fox v. Maulding, 16 F.3d 1079, 1082 (10th Cir. 1994).
“Suits are parallel if substantially the same parties litigate substantially the same issues in different forums.” Allen, 68 F.3d at 403 (quoting Fox, 16 F.3d at 1081). The exact identity of parties and issues is not required. United States v. City of Las Cruces, 289 F.3d 1170, 1182 (10th Cir. 2002). Here, Plaintiff claims that the CS Board and Hearing Office acted ultra vires and violated her procedural and substantive due process rights. These same issues between the same parties arising from the same facts are before the Denver District Court. Thus, the proceedings are parallel.
Finding the proceedings parallel, the Court turns to whether the circumstances of this case favor deference to the state proceeding. The Supreme Court in Colorado River identified several nonexclusive factors to consider in evaluating whether to defer, including (1) whether the state or federal court has assumed jurisdiction over property in dispute; (2) the inconvenience to the parties of the federal forum; (3) avoiding piecemeal litigation; (4) the order in which the courts obtained jurisdiction; (5) the vexatious or reactive nature of either the federal or the state action; (6) whether federal law provides the rule of decision; and (7) the adequacy of the state court action to protect the federal plaintiff's rights. MacIntyre v. JP Morgan Chase Bank, 644 Fed.Appx. 806, 807 (10th Cir. 2016) (citing Colorado River, 424 U.S. at 818).
Here, four of the seven factors weigh in favor of deference to the state court, and the remaining factors are inapplicable or have neutral weight. Factor one is inapplicable in this case, as there is no property at issue. There appears to be no inconvenience to the parties by litigating in the federal forum, nor “vexatious or reactive nature” of the cases; thus, factors two and five weigh neutrally.
Factor three weighs in favor of deference to the state court. Although state and federal courts may adjudicate concurrent litigation on the same or similar issues, this Court risks severing the due process and ultra vires considerations from the remaining judicial review of the agency action, making inconsistent results possible. Additionally, it is typically inefficient and wasteful for two courts to adjudicate primarily the same matters. See Colo. River, 424 U.S. at 817. Considering factor four, the state court assumed jurisdiction over the matter over a year ago. As for the sixth and seventh factors, even assuming Plaintiff brings a claim under federal law, the statutory authority given to the CS Board and Hearing Office will preeminate in determining whether it acted ultra vires, and there is no reason to suggest that the state court is unable to protect Plaintiff's rights.
Therefore, a consideration of the Colorado River factors demonstrates they weigh substantially in favor of deference to the state court. To the extent res judicata does not require dismissal, the Court recommends, based on considerations of wise judicial administration, conservation of judicial resources, and comprehensive disposition of litigation, the relevant claim be dismissed in deference to the state court proceedings. Application of an abstention doctrine means this Court lacks federal subject matter jurisdiction, and consequently, those claims for which this Court should abstain from hearing would be dismissed without prejudice. MacIntyre v. JP Morgan Chase Bank, No. 12-cv-02586-WJM-MEH, 2015 WL 1311241, at *5 (D. Colo. Mar. 19, 2015) (electing to dismiss those claims subject to the Colorado River doctrine and doing so without prejudice); Crone v. Dep't of Human Servs., No. 11-cv-02270-WJM-CBS, 2012 WL 5832438, at *3, *9 (D. Colo. Oct. 5, 2012) (dismissing claims without prejudce that are subject of Rooker-Feldman abstention). However, lack of federal subject matter jurisdiction is only one defect to proceeding with this lawsuit. The overarching issue is the application of the res judicata bar to relief.
III. No Leave to Amend
Dismissal of a case is a harsh remedy, and a pro se litigant's pleadings are to be construed liberally. As a general rule, therefore, a court may give such a litigant the opportunity to amend the complaint to cure a pleading defect. Hall, 935 F.2d at 1109-10; Reynolds v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). However, a court may dismiss a complaint without an opportunity to amend if “it is patently obvious that plaintiff could not prevail on the facts alleged and allowing him an opportunity to amend his complaint would be futile.” Curly v. Perry, 246 F.3d 1278, 128182 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110). Here, the dismissal of Plaintiff's claims does not stem from any pleading deficiency or any oversight in Plaintiff's allegations. Rather, the Court finds, as a matter of law, that Plaintiff's claims are barred by res judicata and, as an alternative basis barring her fifth claim, abstention. No amendment by Plaintiff would remedy these deficiencies. Accordingly, Plaintiff's claims should be dismissed without leave to amend.
CONCLUSION
Although the Court finds that Plaintiff's claims should be dismissed, that does not mean she is foreclosed from litigating them. Indeed, it is because she either already has litigated them (or related claims) in her previous federal lawsuit of Glapion-Pressley I or continues to do so in Colorado state court. The law does not permit her to relitigate them in this new federal lawsuit. To do so would not only run counter to principles of finality, but it would risk inconsistent outcomes and result in inefficient use of litigation resources, for both the Court and the parties. Accordingly, the Court respectfully recommends that Defendants' Motion to Dismiss [filed November 12, 2021; ECF 11] be granted. The Court further recommends that the dismissal be with prejudice and without leave to amend.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).