UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
v. MEMORANDUM OPINION
Civil No. 10?4021 (MJD/JJK)
City of Minneapolis,
This matter is before the Court on the motion of Defendant City of
Minneapolis (“City”) for Partial Judgment on the Pleadings.
I. Procedural Background
Plaintiff is an attorney employed with the Minneapolis City Attorney’s
Office. She previously brought a lawsuit against the City in 2008 (Civil No. 08?
4924), alleging claims of employment discrimination based on race and
retaliation pursuant to Title VII and the Minneapolis Civil Rights Ordinance and
a violation of 42 U.S.C. § 1981. Plaintiff brought another action in June 2009
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(Civil No. 09?1598), in which she asserted claims under 42 U.S.C. §§ 1981 and
1983, and Title VII. Plaintiff amended the Complaint in 09?1598 on September 9,
2009 [Doc. No. 8]. That action was thereafter consolidated with the first filed
action on September 17, 2009. [Doc. No. 12].
By Order dated August 4, 2011 [Civ. No. 08?4924, Doc. No. 161], this Court
granted the City’s motion for summary judgment and dismissed Plaintiff’s claims
with prejudice and judgment was entered. The Eighth Circuit has affirmed this
Court’s decision. Delgado?O’Neil v. City of Minneapolis, No. 10?3344, 2011 WL
3759479 (8th Cir. Aug. 25, 2011).
Plaintiff brings this action, again asserting claims of employment
discrimination and retaliation under Title VII and the Minnesota Human Rights
Act (“MHRA”), disability discrimination under the Americans with Disabilities
Act (“ADA”), workers compensation and a First Amendment retaliation claim.
The City has moved for judgment on the pleadings, asking the Court to
dismiss the Third Amended Complaint1 as to any and all claims that arose from
the same operative facts underlying many of the claims actually litigated and
1Although the motion addressed the Second Amended Complaint, the Plaintiff has since obtained
permission to file a Third Amended Complaint. Accordingly, the Court will address the City’s motion
with reference to the Third Amended Complaint.
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resolved in her prior lawsuit or which could have been litigated in that action.
The City’s motion does not include Plaintiff’s claims in the Third Amended
Complaint premised on a new alleged threat of termination that occurred after
summary judgment briefing in the prior action, her suspension in November
2010, and her June 2010 shoulder injury.
II. Standard for Judgment on the Pleadings
Judgment on the pleadings is appropriate “where no material issue of fact
remains to be resolved and the movant is entitled to judgment as a matter of
law.” Poehl v. Countrywide Home Loans, Inc., 528 F.3d 1093, 1096 (8th Cir.2008)
(quoting Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)). The Court
must view the facts pleaded by the nonmoving party as true and grant all
reasonable inferences in favor of that party. Id.
A. Collateral Estoppel
Collateral estoppel prevents relitigation of an issue if the following
elements are present:
(1) the party sought to be precluded in the second suit must have been a
party, or in privity with a party, to the original lawsuit; (2) the issue sought
to be precluded must be the same as the issue involved in the prior action;
(3) the issue sought to be precluded must have been actually litigated in
the prior action; (4) the issue sought to be precluded must have been
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determined by a valid and final judgment; and (5) the determination in the
prior action must have been essential to the prior judgment.
Robinette v. Jones, 476 F.3d 585, 589 (8th Cir. 2007).
The first, fourth and fifth factors are clearly met in this case. The Court
further finds the remaining factors ? whether the issues sought to be precluded in
this action were raised and actually litigated in the prior action ? are also easily
In the Third Amended Complaint, Plaintiff claims that she was retaliated
against, in violation of Title VII and the MHRA, for engaging in protected
conduct, including but not limited to, lodging internal complaints and filing a
lawsuit alleging retaliation. (Third Amended Complaint ¶¶ 63 and 73.) Many of
the factual allegations asserted in this action were also raised in the prior action.
For example, Plaintiff alleges that during her tenure with the Minneapolis City
Attorney’s office, she filed formal charges of discrimination and has filed two
prior lawsuits, and that her supervisors were aware of the fact that she had filed
such lawsuits because an article about the lawsuit had been published in the Star
Tribune newspaper on November 28, 2008. (Id. ¶¶ 10?12.) These same
allegations were also raised in the prior action. (See Civil No. 08?4924 [Doc. No.
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161, p. 2, 3, 9 and 11].) Further, Plaintiff alleges that in May 2007, she had
requested accommodation for a hearing impairment. (Id. ¶ 20.) She further
alleges that she again requested accommodation for her hearing impairment in
August 2009, and that such request was not addressed by the City to the
Plaintiff’s satisfaction. (Id. ¶¶ 21?27.) Again, these allegations were raised in the
prior action. (See Civil No. 08?4924 [Doc. No. 161, p. 22?23].) Other allegations
raised in both the prior action and this case in support of the retaliation claims
include, but are not limited to: management telling Plaintiff to socialize more (Id.
¶ 48; Civ. No. 08?4924 [Doc. No. 109 at 33,37); management told her to leave her
office door open and that her office was too dark (Id. ¶¶ 55 and 56; Civil No. 08?
4924 [Doc. No. 109 at 33, 37]); and management interfered with her handling of a
case (Id. ¶ 61a; Civil No. 08?4924 [Doc. No. 102 at 28(q)]).
It is also clear that these allegations were actually litigated in the prior
action. With respect to Plaintiff’s claims of retaliation under Title VII and the
MCRO based on excessive discipline and negative performance evaluations, this
Court found that Plaintiff had failed to demonstrate that she suffered an adverse
employment action, and dismissed the claims with prejudice. (Civil No. 08?4924
[Doc. No. 161 at 18?19].) With respect to Plaintiff’s claim that she was not
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promoted to a supervisor position in 2009 in retaliation for filing complaints of
discrimination, the Court rejected Plaintiff’s arguments as to pretext. In doing so,
the Court rejected Plaintiff’s argument that she has a hearing impairment as
Plaintiff did not submit any medical documentation concerning her hearing
impairment. (Id. at 23.)
Accordingly, the Court finds that Plaintiff is collaterally estopped from
asserting retaliation claims based on factual allegations that occurred prior to
September 9, 2009, the date the Second Amended Complaint was filed in Civil
No. 09?1598, which was consolidated with Civil No. 08?4924. The Court further
finds that Plaintiff is estopped from asserting that as of May 2007, she has a
hearing impairment. Plaintiff raised the issue of her hearing impairment in the
prior action, and had the opportunity to submit to the Court documentation
supporting her claim that she had a hearing impairment, but she failed to do so.
B. Res Judicata
Under the doctrine of res judicata, also known as claim preclusion, a party
is barred from bringing “repetitive suits involving the same cause of action.”
Lundquist v. Rice Mem’l Hosp., 238 F.3d 975, 977 (8th Cir. 2001) (citation
omitted). “Final judgment on the merits of an action precludes the same parties
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from relitigating issues that were or could have been raised in that action.” Id.
To determine if res judicata applies the Court must decide: “(1) whether
the prior judgment was rendered by a court of competent jurisdiction; (2)
whether the prior judgment was a final judgment on the merits; and (3) whether
the same cause of action and the same parties or their privies were involved in
both cases.” Banks v. Int’l Union Elec., Elec., Technical, Salaried & Machine
Workers, 390 F.3d 1049, 1052 (8th Cir. 2004) (citation omitted). “[A] claim is
barred by res judicata if it arises out of the same nucleus of operative facts as the
prior claim.” Id. (citation omitted). “Furthermore, the party against whom res
judicata is asserted must have had a full and fair opportunity to litigate the
matter in the proceeding that is to be given preclusive effect.” Costner v. URS
Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998) (citation omitted). In addition,
“[i]t is well settled that claim preclusion does not apply to claims that did not
arise until after the first suit was filed.” Baker Group, L.C. v. Burlington
Northern and Santa Fe Railway Co., 228 F.3d 883, 886 (8th Cir. 2000).
There can be no dispute that the prior judgment in Civil No. 08?4924 was
rendered by a court of competent jurisdiction, it was a final judgment on the
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merits and it involved the same parties as involved in this case. The only issue is
whether the same causes of action were raised in the prior action.
The City argues that Plaintiff’s retaliation claims presented in Count I and
III are identical of those raised in the prior action, and that Plaintiff’s claim of
failure to accommodate her hearing impairment asserted in Count II could have
been brought in the prior action. The City thus argues the claims are barred by
As discussed above, Plaintiff’s retaliation claims arise out of allegations
concerning the same performance reviews, PIP meetings, criticisms from
coworkers and management raised in the prior action. The fact that Plaintiff now
asserts a retaliation claim under the MHRA2 does not bar application of res
judicata, for the doctrine applies to any claim that is in essence the same claim
already litigated “dressed up to look different.” Lane v. Peterson, 899 F.2d 737,
744 (8th Cir. 1990).
In Count II of the Third Amended Complaint, Plaintiff has asserted a claim
of failure to accommodate and retaliation in violation of the Americans with
2Claims arising under the MHRA are construed in accordance with federal law arising
under Title VII. Bahr v. Capella Univ., 788 N.W.2d 76, 81 (Minn. 2010).
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Disabilities Act. Plaintiff alleges that she has a hearing problem, and sought
accommodation for such hearing problem in May 2007. (Third Am. Compl. ¶
20.) Plaintiff further alleges that her hearing impairment was obvious and should
have been accommodated. (Id. ¶ 21.) She alleges that she feared retaliation if she
continued to seek accommodation, but she did so to help her perform her job.
(Id. ¶ 21.5.) In August 2009, Plaintiff again sought accommodation for her
disability through her commentary concerning her 2007?2008 performance
review. (Id. ¶ 23.) She alleges that she met with two of her managers concerning
her request for accommodation on August 25, 2009, and that she received an
email dated September 3, 2009, from one of the managers she met with,
summarizing the meeting. (Id. ¶¶ 24 and 25.) Plaintiff alleges that this “followup”
email did not accurately describe the meeting, and that her managers did not
agree to communicate to others that she had a hearing impairment. (Id. ¶ 26.)
Plaintiff alleges that she believed her request for accommodation was treated as
an act of war. (Id. ¶ 27.)
The Court finds that Plaintiff’s failure to accommodate and retaliation
claims under the ADA, based on her alleged hearing impairment, clearly arose
from the same operative facts underlying the claims at issue in the prior action.
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As the Third Amended Complaint makes clear, these disability claims are based
on prior performance reviews from 2006, 2007 and 2008 and from requests for
accommodations for her hearing impairment that were not honored by the City
prior to September 9, 2009.
The fact that Plaintiff may have obtained additional information through
discovery in this case to support her ADA claims does not bar application of res
judicata or collateral estoppel. See Liberty Mut. Ins. Co. v. FAG Bearing Corp.,
335 F.3d 752 (8th Cir. 2003) (finding that newly discovered evidence may
preclude application of the collateral estoppel doctrine, unless the party against
whom collateral estoppel is asserted was deprived of the evidence through no
fault of their own); (Winrock Grass Farm, Inc. v. Affiliated Real Estate Appraisers
of Ark., Inc., __ S.W.3d __, 2010 WL 1233476 (Ark. Ct. App. March 31, 2010)
(finding that new evidence or research will not prevent the application of res
IT IS HEREBY ORDERED that Defendant City of Minneapolis’ Motion for
Partial Judgment on the Pleadings [Doc. No. 35] is GRANTED. Counts I, II and
III of the Third Amended Complaint are hereby dismissed in part as follows:
Plaintiff’s retaliation claims asserted in Counts I and III are barred to the extent
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such claims are based on factual allegations that arose prior to September 9, 2009,
and Plaintiff’s failure to accommodate and retaliation claims asserted in Count II
are barred to the extent such claim is based on a hearing impairment.
Date: October 30, 2011 s/ Michael J. Davis
Chief Judge Michael J. Davis
United States District Court
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