The opinion of the court was delivered by: Denise Cote, District Judge
On February 13, 2008, Michael Golden ("Golden") filed this pro se action against his employer, the New York City Department of Environmental Protection ("DEP"), alleging violations of the Family Medical Leave Act ("FMLA") and the New York State Human Rights Law ("NYSHRL"). The defendant has moved to dismiss the complaint on the ground that its claims are barred by the doctrine of res judicata. For the following reasons, the motion is granted.
Golden is employed by the DEP as a laboratory associate. On February 28, 2006, his counsel filed an action against the DEP, complaining principally of race, national origin, and disability discrimination. In the course of fact discovery in October 2006, plaintiff's counsel withdrew, and Golden proceeded pro se from that time.
An amended complaint of March 22, 2006 asserted nine claims. Five of the claims arose under federal statutes. Specifically, Golden alleged a violation of the Americans with Disabilities Act ("ADA"), three claims under Title VII of the Civil Rights Act of 1964 ("Title VII") for discrimination, harassment and retaliation, and a violation of the FMLA. The remaining claims alleged violations of the NYSHRL and New York State common law. Golden's disability claim was based on his uncontrolled shaking from torticollis. The alleged FMLA violation -- an "interference" claim pursuant to 29 U.S.C. § 2615(a)(1) -- arose from Golden's absences from work due to a back injury.
The DEP filed a motion for summary judgment on March 2, 2007. An Opinion of August 10, 2007 granted summary judgment to the defendant on the federal discrimination claims, finding that they were time-barred. Golden v. New York City Dep't of Envtl. Prot., No. 06 Civ. 1587 (DLC), 2007 WL 2319130 (S.D.N.Y. Aug. 10, 2007). Because the parties had not addressed the legal framework for an FMLA claim, the Court reserved decision on the portion of the summary judgment motion addressed to that claim and provided the parties with an additional opportunity to brief the issue. The DEP's renewed motion for summary judgment on the FMLA claim was subsequently granted by an Opinion of December 3, 2007. Golden v. New York City Dep't of Envtl. Prot., No. 06 Civ. 1587 (DLC), 2007 WL 4258241 (S.D.N.Y. Dec. 3, 2007).*fn1
Golden filed a motion for reconsideration of the December 3, 2007 Opinion, which the Court denied in an Opinion of March 24, 2008. Golden v. New York City Dep't of Envtl. Prot., No. 06 Civ. 1587 (DLC), 2008 WL 762107 (S.D.N.Y. Mar. 24, 2008).
While the motion for reconsideration was being briefed, Golden filed this action against the DEP on February 13, 2008, alleging once more discriminatory conduct and interference with his FMLA rights. The complaint in the current action repeats the allegations of the 2006 complaint nearly verbatim but asserts only two causes of action: (1) an FMLA retaliation claim pursuant to 29 U.S.C. § 2615(b), and (2) a violation of the NYSHRL. The only factual allegation that Golden appears to have added is that, after notifying his supervisor that he intended to take FMLA leave, Golden received negative employment evaluations in that year and two subsequent years. He complains that the DEP refused his requests, made in 2005, to correct the negative evaluations. The DEP has moved to dismiss the complaint on the ground that the action is barred by the doctrine of res judicata.*fn2 Golden has submitted papers in opposition to the motion.
"Under the doctrine of res judicata, or 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." D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 112 (2d Cir. 2006) (citation omitted). "Even claims based upon different legal theories are barred provided they arise from the same transaction or occurrence." Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (citation omitted). "Res judicata applies even where new claims are based on newly discovered evidence, unless the evidence was either fraudulently concealed or it could not have been discovered with due diligence." L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999) (citation omitted).
Golden's current action is barred by the doctrine of res judicata. It arises out of the same occurrences that precipitated the claims in his prior action before this Court --namely, Golden's requests for FMLA leave for his back injury. The prior litigation resulted in a final judgment on the merits of the federal claim against Golden. He has sued the same defendant in this action and repeats many of the same allegations against it. The retaliation claim that he now raises under the FMLA could have been brought in the prior litigation.
Golden attempts to distinguish this claim from the claims he raised in his first lawsuit with the explanation that the facts underlying his current lawsuit were used in the prior action as "proof of Defendant's retaliatory animus" and not "as evidence of the FMLA retaliation infraction." This distinction is unavailing. The doctrine of res judicata bars all subsequent claims that arise from the same occurrence, even if they are based on different legal theories. Like the FMLA retaliation claim Golden now asserts, the claims he raised in the prior action were also predicated on the manner in which he was treated after making the FMLA leave requests. The negative employment evaluations and any other facts Golden has added were known to him when he filed the prior lawsuit in 2006.*fn3 In sum, the issues ...