Walsh v. Cmty. Health Ctr. of Richmond

• Decision Date: 28 September 2022
• Docket Number: 21-CV-3094 (ARR)(TAM)
• Parties: MARTIN J. WALSH, Secretary of Labor, United States Department of Labor, Plaintiff, v. COMMUNITY HEALTH CENTER OF RICHMOND, INC., a corporation and HENRY THOMPSON, individually and as a corporate officer, Defendants.
• Court: U.S. District Court — Eastern District of New York

MARTIN J. WALSH, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
COMMUNITY HEALTH CENTER OF RICHMOND, INC., a corporation and HENRY THOMPSON, individually and as a corporate officer, Defendants.

No. 21-CV-3094 (ARR)(TAM)

United States District Court, E.D. New York

September 28, 2022

OPINION & ORDER

Allyne R. Ross United States District Judge

Defendants, Community Health Center of Richmond, Inc. (“Community Health Center”) and Henry Thompson, move for partial dismissal of the complaint of plaintiff, Martin J. Walsh, Secretary of Labor (the “Secretary”), on the ground that claim preclusion bars the Secretary from seeking money damages to be paid to defendants' former employee, Qiana Nunez. Defendants contend that Ms. Nunez litigated similar claims to final judgment in a prior lawsuit, therefore the Secretary may not seek monetary relief payable to Ms. Nunez in this action. I hold that claim preclusion does not apply to the Secretary's claim against defendants because the Secretary and Ms. Nunez are not in privity, and I therefore deny the partial motion to dismiss.

BACKGROUND

At the beginning of the COVID-19 pandemic, Qiana Nunez worked for defendant Community Health Center, where she held the title of Executive Office Manager. Compl. ¶ 16, ECF No. 1.

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Concerned about the potential spread of COVID-19 at Community Health Center's planned in-person executive leadership meeting on March 17, 2020, Ms. Nunez sent an email to participants alerting them that the meeting would instead be held by teleconference. Id. ¶¶ 43, 50. When defendant Thompson instructed her to re-set the meeting as an in-person meeting, Ms. Nunez did so, but told Thompson that she would not attend out of concern for her health. See Id. ¶¶ 51-57. Two days later, Ms. Nunez was suspended from her duties for “insubordination, confrontational and disruptive behavior, and refusal to participate in the . . . leadership meeting on Tuesday, March 17, 2020.” Id. ¶ 62. On April 9, 2020, Ms. Nunez received a letter informing her that Community Health Center was “exercising our employer right to terminate your at-will employment.” Id. ¶¶ 71-72.

On May 7, 2020, Nunez filed a complaint with the Occupational Safety and Health Administration (“OSHA”) pursuant to Section 11(c) of the Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 651, et seq., alleging that defendants suspended and terminated her for making a complaint about unsafe conditions at the March 17, 2020 meeting, and for her refusal to attend. Id. ¶ 75. Section 11(c)(1) of the OSH Act provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . . or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.” 29 U.S.C. § 660(c)(1). Section 11(c)(2) further provides that “[a]ny employee who believes that [she] has been discharged or otherwise discriminated against by any person” in violation of Section 11(c)(1) may “file a complaint with the Secretary [of Labor] alleging such discrimination.” Id. § 660(c)(2). If the Secretary believes Section 11(c)(1) was violated, “[the Secretary]

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shall bring an action in any appropriate United States district court against such person.” Id. Only the Secretary may sue under Section 11(c)(2); there is no private right of action. See Donovan v. Occupational Safety and Health Rev. Comm'n, 713 F.2d 918, 926 (2d Cir. 1983) (“Under OSHA, employees do not have a private right of action.” (citation omitted)); see also Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1098 (D.C. Cir. 2017) (holding that “[t]he text of Section 11(c) specifically addresses who may sue,” foreclosing suits by “private parties”); Taylor v. Brighton Corp., 616 F.2d 256, 262 (6th Cir. 1980) (noting the legislative history of Section 11(c) “evidences a progressive narrowing of both the employee's right to a hearing on his claim ... and his role in securing relief from the alleged violation”).

On June 17, 2020, while the Secretary's Section 11(c) investigation was ongoing, Nunez sued the same defendants-Community Health Center and Mr. Thompson-in federal court, asserting wage claims under the Fair Labor Standards Act and New York Labor Law and violations of New York Labor Law § 740. See Nunez v. Cmty. Health Ctr. of Richmond, Inc., No. 1:20-cv-03036 (E.D.N.Y.) (the “Prior Action”). N.Y.L.L. § 740 protects employee-whistleblowers from adverse employment action. The parties agree that a Section 740 claim requires the plaintiff to demonstrate that she reported an actual violation of the law, while Section 11(c) does not. See Defs.' Mem. Supp. Mot. to Dismiss 5 n.3, ECF No. 19-1 (hereinafter Defs.' Mem.); Pl.'s Opp'n Mot. to Dismiss 20, ECF No. 19-9 (hereinafter Opp'n). In her original complaint, Ms. Nunez identified then-Governor Andrew Cuomo's March 16, 2020 COVID-related Executive Order as the law allegedly violated by defendants. Prior Action, Compl. ¶ 37, ECF No. 1. Plaintiff later amended her complaint to assert that the OSH Act's General Duty Clause, 29 U.S.C. § 654(a), was the law allegedly violated by defendants. Prior Action, Am. Compl. ¶ 70, ECF No. 15.

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On October 9, 2020, defendants served a partial motion to dismiss the Prior Action. Prior Action, ECF No. 17. Defendants intended to argue that because Nunez lacked a private right of action under the OSH Act, she could not predicate her state whistleblower claim on alleged OSH Act violations. See Prior Action, ECF No. 16, at 2.^[1] Defendants argued that Nunez's Section 740 claim was “an attempted end-run around the [OSHA] and the OSH Act's enforcement scheme” and that “the Secretary of Labor, through OSHA, alone enforces the OSH Act and determines whether a given scenario constitutes an OSH Act violation or retaliation.” Id. On December 1, 2020, before the briefing was completed, the parties in the Prior Action filed a stipulation voluntarily dismissing Ms. Nunez's Section 740 claim with prejudice. Prior Action, ECF No. 18. Ms. Nunez and the defendants later settled the remaining FLSA and NYLL claims, and stipulated to a dismissal of the remaining claims with prejudice. See Prior Action, ECF Nos. 29, 34, 35.

On June 1, 2021, the Secretary commenced the instant action against defendants, alleging they violated Section 11(c) of the OSH Act and seeking front pay, back pay, compensatory, and punitive damages to be paid to Ms. Nunez, an injunction preventing defendants from violating Section 11(c), posting of a notice that defendants will not discriminate against employees for engaging in protected activities, and expungement of references to Ms. Nunez from personnel and company records. See Compl., Prayer for Relief.

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Defendants now move to dismiss the Secretary's complaint to the extent that he seeks victim-specific relief for Ms. Nunez, contending that under the doctrine of res judicata, the Secretary is precluded from seeking damages for Nunez because her retaliation claim in the Prior Action was dismissed with prejudice. Defendants do not seek to dismiss the Secretary's claims insofar as they seek equitable relief. See Defs.' Mem. 1 (“Defendants do not dispute the Secretary's ability to maintain this action or to pursue injunctive relief.”).

LEGAL STANDARD

Under the doctrine of res judicata, also known as claim preclusion, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”Monahan v. N.Y.C. Dep't of Corrections, 214 F.3d 275, 284 (2000) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). Accordingly, “[t]o prove the affirmative defense a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Id. at 285 (citing Allen, 449 U.S. at 94). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.'” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation omitted) (quotations omitted). The doctrine “protect[s] against the expense and vexation attending multiple lawsuits, conserve[s] judicial resources, and foster[s] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Id. (quotation omitted).

With respect to the first element, defendants argue that Ms. Nunez's stipulation of dismissal with prejudice in the prior action is an “adjudication on the merits,” and the Secretary does not

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contest this argument. See Defs.' Mem. 9-10. See generally Opp'n. Ms. Nunez's dismissal with prejudice in the Prior Action was a final judgment on the merits. See Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995) (“A voluntary dismissal with prejudice is an adjudication on the merits for purposes of res judicata.” (citation omitted)).

1. Privity

The parties contest whether the Secretary and Ms. Nunez are in privity. The general rule of nonparty preclusion is that “[a] person who was not party to a suit generally has not had a full and fair opportunity to litigate the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the deep-rooted historic tradition that everyone should have his own day in court.” Taylor, 553 U.S. at 892-93 (quotations and citation omitted). Accordingly, a nonparty may be bound by a final judgment in a prior action only if there is a relationship constituting “privity” between the parties. See id. at 894 n.8 (“The term ‘privity' . . . has also come to be used more broadly, as a way...