Pond v. Town of N. Branford

DANIEL POND, Plaintiff

v.TOWN OF NORTH BRANFORD, Defendant

NO. 3:11-cv-00984 (DJS)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

So ORDERED: March 6, 2013

MEMORANDUM OF DECISION

The Plaintiff, Daniel Pond, brings this action against the Defendant, Town of North Branford ("the Town"). The Plaintiff seeks compensatory damages, attorney fees, costs of the action, as well as other relief deemed equitable by this Court. In his complaint, the Plaintiff alleges the violation of his rights secured under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111, et seq., ("ADA") and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.¹

The Town has filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking the dismissal of this action under the doctrine of res judicata. For the reasons that follow, the Town's motion for judgment on the pleadings (dkt. #21) is GRANTED.

I. STANDARD OF REVIEW

"After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "When [a party] mov[es] to dismiss basedon facts beyond the bare face of the complaint, the motion is properly pursuant to Fed. R. Civ. P. 12(c), judgment on the pleadings." Peia v. United States, 152 F. Supp. 2d 226, 232 (D. Conn. 2001). "In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). A court should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (internal quotation marks omitted).

"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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A]lthough a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions . . . ." Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (internal quotation marks omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss and [d]etermining 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." Id. (quotation marks omitted).

"The defense of res judicata may be asserted in a 12(b)(6) motion if its availability appears from the plaintiff's pleadings." Southard v. Southard, 305 F.2d 730, 732 n.1 (2d Cir. 1962); see also Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir.1994) ("Res judicatachallenges may properly be raised via a motion to dismiss for failure to state a claim under Rule 12(b)(6)").

II. FACTS

A. Background

Plaintiff served as a highway employee for the Town of North Branford from the date of his hire, August 12, 2002, to the date of his termination, June 4, 2009. At all relevant times, the Plaintiff suffered from medical disabilities (panic anxiety disorder, shy bladder and constriction of the prostate) which made it "virtually impossible for him to urinate on demand and severely limit[ed] his ability to urinate under any circumstances." (Doc. # 1, at 2, ¶ 9).

Because the Plaintiff possessed a commercial driver's license ("CDL"), he was required to submit to random drug testing mandated by the Federal Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. § 31306, et seq. ("FOTETA")² and its supporting regulations, 49 C.F.R. § 382.101, et seq.³ On February 15, 2008, the Town subjected the Plaintiff to a drug test in which he was required to urinate into a container. The Plaintiff explained that his medical disability precluded him from urinating on demand and requested another type of drug test, such as a blood test. The drug test administrator denied the Plaintiff's request. Subsequently, even after drinking large quantities of liquid, the Plaintiff was unable to urinate and the test was cancelled.

As a result, the Town referred the Plaintiff to a drug treatment and rehabilitation program. The Plaintiff provided the Town with written medical documentation of his medical disorders, but, on May 18, 2009, he was again ordered to take a drug test by urinating in a container. The Plaintiff once again explained his inability to urinate into the container, but his request for an alternative method of testing, such as a blood test, was denied again. The Plaintiff then telephoned his wife to discuss the denied request for an alternative testing method. At that point, the plaintiff was ordered to leave the drug testing area.⁴

On June 1, 2009, the Town summoned the Plaintiff to a pre-termination hearing. At that hearing, he was advised that the May 18, 2009 incident was considered a second violation of the Town's drug-free policy and that, as a result, he was facing termination. On June 4, 2009, the Town terminated the Plaintiff's employment because of his alleged failures of the two drug tests.

B. The Plaintiff's State Court Claim

That same day, June 4, 2009, the Plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities ("CHRO") and the Equal Employment Opportunity Commission ("EEOC"). Having obtained a release of jurisdiction from the CHRO, the Plaintiff filed a revised complaint in state court on February 7, 2011, alleging that the Town failed to accommodate his disabilities in violation of the Connecticut Fair Employment Practices Act ("CFEPA").

On February 22, 2011, the Town moved to strike the Plaintiff's revised complaint, arguing that FOTETA and its supporting regulations preempted the Plaintiff's CFEPA claim. SeePond v. Town of North Branford, No. NNHCV116016980S, 2011 WL 3278577, at *2 (Conn. Super. Ct. July 6, 2011). The Town contended that the Plaintiff's CFEPA claim was preempted because "(1) compliance with both CFEPA and FOTETA [would be] impossible and (2) compliance with CFEPA [stood] as an obstacle to FOTETA's purposes and objectives." Id. The Plaintiff countered that CFEPA and FOTETA are consistent and that because CFEPA tracks the ADA, it cannot conflict with FOTETA.

By decision dated July 6, 2011, the state court granted the Town's motion to strike. The court began by setting out the proper standard of review applicable to a motion to strike: "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . . [A]ll well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . ." Id. at *1 (internal quotation marks omitted) . The court then framed the issue before it as "whether it is inconsistent with FOTETA to require an employer to provide, as a reasonable accommodation under CFEPA, a method of drug testing alternative to urinalysis for an employee, who, because of shy bladder syndrome, is unable to provide a urine sample during a random drug test." Id. at *7

After a thorough examination of FOTETA's statutory and regulatory scheme, the congressional purpose behind FOTETA, and the basic principles of preemption, the court answered the issue question in the affirmative. Specifically, the court determined that:

[P]roper implementation of FOTETA's drug testing regulations cannot result in violation of state discrimination laws. In fact, in Kinneary [v. City of New York, 601 F.3d 151 (2d Cir. 2010)], the Second Circuit decision implies that FOTETA, rather than preempting state and local discrimination statutes, is actually in accord with them in that the DOT regulations already provide for a reasonableaccommodation. In the present case, the plaintiff . . . took advantage of the accommodation built into the DOT regulations. The regulations, however, do not provide for or allow alternative methods of drug testing and the MRO [Medical Review Officer] is not permitted [to] use alternative tests to comply with the regulations. As such, to require an employer to accommodate a plaintiff's disability beyond that which is already provided for in accordance with the regulations would make compliance with both CFEPA and FOTETA impossible. Accordingly, to the extent that CFEPA requires an employer to provide reasonable accommodations for a disability beyond that which FOTETA and its regulations already provide for, FOTETA and its regulations preempt CFEPA. Therefore, the motion to strike is granted.

Id. at *10.

III. DISCUSSION

The Town's primary argument in favor of judgment on the pleadings is that the doctrine of res judicata bars the Plaintiff's complaint. Res judicata is proper, it is argued, "because the same claim was litigated in state court where a judgment was entered on the merits and Plaintiff had ample opportunity to litigate his federal claims in the state court proceeding, but for whatever reason, chose not to." (Dkt. #21, at 1).

Analysis of the res judicata assertion must begin with the full faith and credit clause of 28 U.S.C. § 1738. This relevant section states, "The . . . judicial proceedings of any court of any . . . State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State. . . ." 28 U.S.C. § 1738. It "requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged." Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 (1982); see also Jenkins v. City of New York, 478 F.3d 76, 85 (2d Cir. 2007) ("There is no...