UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Corey Cutting Jordan-Rutledge

v. Case No. 22-cv-457-SE Opinion No.

Liberty Mutual Insurance Company

O R D E R

A New Hampshire plaintiff alleging workplace discrimination

on the basis of a disability must first exhaust his

administrative remedies by filing a charge with the U.S. Equal

Employment Opportunity Commission (“EEOC) or the New Hampshire

Commission for Human Rights (“Commission”). See Thornton v.

United Parcel Serv., Inc.,

(1st Cir. 2009). Once

he has filed his administrative charge, he may choose among

possible steps to redress his injuries. For example, after a

determination by the Commission, if he is dissatisfied, he may

obtain judicial review of that determination in the New

Hampshire Superior Court, see RSA 354-A:22, I, or bring an

action in federal court arising out of the same claims of

discrimination which formed the basis of the Commission’s

decision, see

at V. But, he may not fully avail himself of

one of those options, receive an adverse result, and then pursue

the other option. That is precisely what plaintiff Corey Cutting Jordan-

Rutledge attempts to do in this case. After the Commission found

no probable cause to support his disability discrimination and

retaliation claims against his former employer, Liberty Mutual

Group Inc.,1 Jordan-Rutledge appealed the decision to the

superior court. The superior court affirmed the Commission’s

decision and denied Jordan-Rutledge’s motion for

reconsideration. He did not appeal the superior court’s order to

the New Hampshire Supreme Court. Jordan-Rutledge then instituted

the instant action in this court, asserting a disability

discrimination claim against Liberty Mutual arising out of the

same facts that were the subject of the Commission’s and the

superior court’s decisions.

Liberty Mutual has moved to dismiss the action on the basis

of res judicata (doc. no. 7) and has also moved for sanctions

under Federal Rule of Civil Procedure 11 (doc. no. 8). Liberty

Mutual is correct that the doctrine of res judicata precludes

Jordan-Rutledge from relitigating his disability discrimination

claim in this court. Therefore, the court grants Liberty

1 Although the named defendant is Liberty Mutual Insurance Company, the defendant represents that Jordan-Rutledge was employed by Liberty Mutual Technology Group, a division of Liberty Mutual Group Inc. Jordan-Rutledge does not dispute that assertion.

2 Mutual’s motion to dismiss. The court does not, however, impose

sanctions on Jordan-Rutledge at this time.

Standard of Review

“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,

(2009) (quotation omitted). Under this

plausibility standard, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

pleading requirement demands “more than a sheer possibility that

[the] defendant has acted unlawfully,” or “facts that are merely

consistent with [the] defendant’s liability.”

(quotation

omitted). Although the complaint need not set forth detailed

factual allegations, it must provide “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”

In deciding a motion to dismiss, the court takes the non-

conclusory factual allegations in the complaint as true and

resolves reasonable inferences in favor of the nonmoving party.

Doe v. Stonehill College, Inc.,

(1st Cir.

2022). The court “may also consider facts subject to judicial

notice, implications from documents incorporated into the

3 complaint, and concessions in the complainant’s response to the

motion to dismiss.” Breiding v. Eversource Energy,

(1st Cir. 2019) (quotation omitted). When the plaintiff is a

pro se litigant, the court construes his complaint liberally.

Boivin v. Black,

(1st Cir. 2000).

Background2

Liberty Mutual hired Jordan-Rutledge as a software

developer on March 13, 2017.3 At his annual performance review in

January 2018, Jordan-Rutledge received a rating of “Below Meets

Expectations.” The review stated that Jordan-Rutledge was

expected to improve his performance immediately.

In July 2018, Liberty Mutual met with Jordan-Rutledge and

informed him that it was not happy with his performance and that

it would issue a written warning if he were unable to

demonstrate improvement. Approximately two weeks after that

meeting, Jordan-Rutledge emailed his supervisor stating that he

2 These facts are taken from Jordan-Rutledge’s complaint, the Commission’s decision, and the superior court’s order affirming that decision.

3 Jordan-Rutledge alleges that he interviewed for a different position but, due to a clerical or other error, Liberty Mutual hired him as a software developer. Although Jordan-Rutledge repeatedly notes that fact in his filings, the discrepancy is not relevant to the issues in this case.

4 suspected that he could be diagnosed with a language-based

learning disorder. He attached a physician’s note from 1995.

In early August 2018, Liberty Mutual placed Jordan-Rutledge

on a 60-day written performance warning. Jordan-Rutledge then

contacted Liberty Mutual’s Human Resources support center to

request an accommodation. On August 17, 2018, he was diagnosed

with ADD/ADHD and a language-based learning disorder.

Over the next several months, Jordan-Rutledge and Liberty

Mutual’s Americans with Disabilities Act (“ADA”) Specialist,

Sean Lambert, communicated regarding Jordan-Rutledge’s request

for accommodation. Jordan-Rutledge’s physician recommended that

he take periodic breaks, be given additional time to complete

tasks, be provided with written instructions, and be given

multi-modal presentation of information. Lambert indicated in

communications with Jordan-Rutledge that Liberty Mutual had

provided those accommodations to him, other than extending

deadlines to complete tasks, which “often cannot be extended

without impacting the delivery of the overall product.” Doc. no.

7-1 at 21. Lambert added that an “essential function of your

role is to be able to complete your tasks within specific time-

constraints.”

On January 18, 2019, Jordan-Rutledge received his 2018

Annual Performance Evaluation. It stated that he “Partially Met

5 Expectations.” On January 30, 2019, Lambert emailed Jordan-

Rutledge stating that Liberty Mutual had provided him with the

accommodations described by his healthcare provider. Lambert

further stated that Jordan-Rutledge had requested in their phone

call that a teammate temporarily sit with him for one hour per

week while he works. Lambert agreed to provide that

accommodation for up to 30 days and said that Jordan-Rutledge’s

manager would provide a teammate to sit with him for 30 minutes

per day for the next 30 days.

On January 31, 2019, Liberty Mutual placed Jordan-Rutledge

on a 30-day probation due to his failure to improve his

performance. On March 19, 2019, Liberty Mutual terminated

Jordan-Rutledge for performance issues.

On September 9, 2019, Jordan-Rutledge dual-filed a Charge

of Disability Discrimination and Retaliation with the Commission

and the EEOC.4 After receiving Liberty Mutual’s response and

Jordan-Rutledge’s rebuttal, the Commission provided the parties

with a letter containing its findings on December 9, 2021. The

letter indicated that the Commission found No Probable Cause on

4 The Commission and the EEOC have a work-sharing agreement, and federal regulations designate the Commission as a state agency that has the authority to investigate charges of and enforce prohibitions against disability discrimination. See

; Moher v. Chemfab Corp.,

(D.N.H. 1997).

6 both the disability discrimination and retaliation claims under

RSA 354-A. It stated, in relevant part, that Jordan Rutledge

“offered insufficient evidence to demonstrate [Liberty Mutual]

failed to accommodate him.” Doc. no. 7-1 at 24. It further

stated that he failed to show that he could perform the

essential functions of his job even with reasonable

accommodation, his performance issues predated his report of a

disability and request for accommodations, and Liberty Mutual

granted all of his requests for accommodations and worked to

assist him.

In addition, the letter stated that Jordan-

Rutledge failed to demonstrate that Liberty Mutual’s actions

were retaliatory and that Liberty Mutual had offered a

successful affirmative defense that it terminated Jordan-

Rutledge for legitimate, non-discriminatory reasons.

Pursuant to RSA 354-A:21, II(a), Jordan-Rutledge appealed

the Commission’s decision to the Strafford County Superior

Court. The superior court affirmed the Commission’s findings on

October 12, 2022. Specifically, the superior court determined

that the Commission’s finding of No Probable Cause for the

charges of disability discrimination and retaliation “was

lawful, reasonable, and supported by the record.” Doc. no. 7-1

at 97, 100. Jordan-Rutledge moved for reconsideration and the

superior court denied the motion on November 4, 2022. He did not

7 appeal either of the superior court’s orders to the New

Hampshire Supreme Court.

Jordan-Rutledge then filed this action on November 3, 2022.

The complaint alleges that Liberty Mutual failed to accommodate

his disability.

Liberty Mutual moves to dismiss the complaint, arguing that

Jordan-Rutledge’s claim is barred by res judicata and the

applicable statute of limitations, and fails to state a viable

claim for relief. Jordan-Rutledge filed an objection and, with

the court’s permission, a supplemental objection.

Discussion

I. Res Judicata

“Under federal law, a state court judgment receives the

same preclusive effect as it would receive under the law of the

state in which it was rendered.” Dillon v. Select Portfolio

Servicing,

(1st Cir. 2011); Kremer v. Chem.

Constr. Corp.,

(1982) (discussing

). New Hampshire law provides that:

Res judicata precludes the litigation in a later case of matters actually decided, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action. For the doctrine to apply, three elements must be met: (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment

8 on the merits must have been rendered in the first action.

Brooks v. Trs. of Dartmouth Coll.,

(2011). The

defendant bears the burden of demonstrating that res judicata

applies. Dillon,

.

There is no dispute that the claims in front of the

superior court and in this case involve the same parties. The

other two res judicata elements, however, require further

discussion.

A. Same Cause of Action

As Liberty Mutual argues, the complaint in this case, on

its face, alleges the same conduct underlying the superior court

action: that Liberty Mutual failed to accommodate Jordan-

Rutledge’s disability. Viewed generously, Jordan-Rutledge’s

objections argue that res judicata does not apply because the

instant action involves a different cause of action than his

claims before the Commission and the superior court.

Specifically, he argues that his claim in this case — that

Liberty Mutual failed to accommodate his disability — was not a

part of his underlying charge of discrimination with the

Commission or of the superior court action. He is wrong.

Jordan-Rutledge’s charge with the Commission alleged that

he was discriminated against on the basis of his disability in

9 part by Liberty Mutual’s failure to accommodate his disability.

See doc. no. 7-1 at 10-11. The Commission analyzed Jordan-

Rutledge’s discrimination claim as a failure to accommodate

claim. Id. at 23. The Commission found:

[Jordan-Rutledge] offered insufficient evidence to demonstrate [Liberty Mutual] failed to accommodate him. Specifically, [Jordan-Rutledge] failed to demonstrate with reasonable accommodation he could perform the essential functions of the job. The evidence demonstrated [Jordan-Rutledge]’s performance issues predated [Jordan-Rutledge] reporting a disability and requesting disability-related accommodations. With that said, [Liberty Mutual] granted all requests for accommodations and worked to assist [Jordan-Rutledge].

Id. at 24. The superior court affirmed the Commission’s

decision, stating that the “record reflects, and the Commission

properly found, that Liberty Mutual granted each of Mr. Jordan-

Rutledge’s requests for accommodation.”5 Id. at 98.

For those reasons, Liberty Mutual has shown that the

complaint in this case alleges the same conduct underlying

Jordan-Rutledge’s superior court action.

5 The similarity of Jordan-Rutledge’s cause of action in this case and his claims in front of the Commission and superior court is further demonstrated by the fact that Jordan-Rutledge attached as an exhibit to his complaint in this case a “timeline of events” containing the relevant incidents to support his claim. Doc. no. 1 at 9. This timeline contains the caption and docket number of his superior court case against Liberty Mutual and appears to have been used as an exhibit to support his claims in that case. Id.

10 B. Final Judgment on the Merits

The superior court affirmed the Commission’s decision on

October 12, 2022, and denied Jordan-Rutledge’s motion for

reconsideration on November 4, 2022. The superior court ruled on

the merits of the claims in both its initial order and its order

on Jordan-Rutledge’s motion for reconsideration. Jordan-Rutledge

did not appeal the decisions to the New Hampshire Supreme Court,

rendering the superior court’s ruling a final judgment. See

Super. Ct. R. 46(d); Anthony v. Town of Plaistow, No. 2021-0410,

, at *2 (N.H. May 16, 2023).

Because Jordan-Rutledge is proceeding pro se, the court

offers an additional clarification for his benefit. Neither the

complaint nor Jordan-Rutledge’s objections state under which law

he is pursuing his disability discrimination claim in this case.

His complaint includes a right-to-sue letter from the EEOC

issued after the Commission made its finding of No Probable

Cause and, thus, he may have intended to assert a claim under

the ADA rather than under RSA 354-A. The court notes for the

purpose of clarity that even if he had intended to assert an ADA

claim, that claim would still be barred by res judicata.

Under RSA 354-A:22, V, a plaintiff may institute “an action

in federal court arising out of the same claims of

discrimination which formed the basis of an order or decision of

11 the [C]ommission.” But that relief is available only where the

plaintiff terminates his appeal of the Commission’s decision

before the state court issues a final judgment on the merits.6

Butland v. New Hampshire Dep’t of Corr.,

(D.N.H. 2002) (“Because the Human Rights Commission’s order was

never vacated, and her appeal to the state supreme court was

never dismissed or otherwise terminated before final judgment

entered on the merits, plaintiff’s identical federal claim is

barred under the doctrine of res judicata.”). Here, Jordan-

Rutledge brought this action after the superior court issued a

final judgment on the merits on his disability discrimination

claim.

Liberty Mutual has shown that the superior court issued a

final judgment on the merits on the same cause of action that

Jordan-Rutledge raises here, in a case involving the same

parties. Therefore, Jordan-Rutledge’s disability discrimination

claim is barred by res judicata.

II. Collateral Estoppel

Even if res judicata did not bar Jordan-Rutledge’s claim,

collateral estoppel would require dismissal. That doctrine “bars

6The EEOC’s right-to-sue letter is dated August 8, 2022, more than two months before the superior court issued its order affirming the Commission’s decision.

12 a party to a prior action, or a person in privity with such

party, from relitigating any issue or fact actually litigated

and determined in the prior action.” 412 S. Broadway Realty, LLC

v. Wolters,

(2016) (quotation omitted).

Collateral estoppel applies when the following requirements are

met:

(1) the issue subject to estoppel is identical in each action; (2) the first action resolved the issue finally on the merits; (3) the party to be estopped appeared in the first action or was in privity with someone who did; (4) the party to be estopped had a full and fair opportunity to litigate the issue; and (5) the finding at issue was essential to the first judgment.

(quotation omitted). Collateral estoppel would apply to

Jordan-Rutledge’s claim in this case and would preclude him from

relitigating his claim that Liberty Mutual failed to reasonably

accommodate his disability. As discussed above, that issue was

the subject of the Commission’s findings and the superior

court’s order.

III. Remaining Arguments

Because Jordan-Rutledge’s claim in this case is barred by

res judicata and collateral estoppel, the court need not address

Liberty Mutual’s remaining arguments. The court grants its

motion to dismiss.

13 IV. Sanctions

Contemporaneous with its motion to dismiss, Liberty Mutual

filed a motion seeking a sanction of reasonable expenses,

including attorney’s fees, pursuant to Federal Rule of Civil

Procedure 11(c)(2) against Jordan-Rutledge for filing a federal

complaint that is “frivolous and without merit.” Doc. no. 8-2 at

4. Liberty Mutual does appear to have made a good-faith effort

to educate Jordan-Rutledge regarding his responsibilities under

Rule 11 and to request that he withdraw his complaint. Doc. no

8-1, at 111-15. Nonetheless, in light of the unique

circumstances of this case and Jordan-Rutledge’s pro se status,

the court is reluctant to impose the sanction of an award of

costs and attorneys’ fees at this time. But, Jordan-Rutledge is

now on notice that Rule 11 imposes, among other obligations, a

reasonable belief that all pleadings are filed with a proper

purpose, that claims and defenses are warranted, and that

allegations and denials of allegations have evidentiary support.

Any future violations will be subject to sanctions.

Conclusion

For the foregoing reasons, Liberty Mutual’s motion to

dismiss (document no. 7) is granted and its motion for sanctions

14 (doc. no. 8) is denied. The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge August 10, 2023

cc: Corey Cutting Jordan-Rutledge, pro se Counsel of Record.

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