United States District Court, W.D. North Carolina, Asheville Division
REIDINGER, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendants'
Renewed Motion to Dismiss [Doc. 36].
October 22, 2015, the Plaintiff Rita Kotsias, proceeding
pro se, filed her first lawsuit against CMC II, LLC;
La Vie Care Centers, d/b/a Consulate Health Care; Consulate
Management Company; Florida Health Care Properties, LLC; and
ESIS. [Civil Case No. 1:15-cv-00242-MR-DLH
(“Kotsias I”), Doc. 1]. In Kotsias
I, the Plaintiff asserted claims of discrimination
pursuant to Title VII of the Civil Rights Act of 1964 and the
Americans with Disability Act of 1990. Specifically, the
Plaintiff alleged that the named Defendants: (1) failed to
accommodate her in violation of the ADA when she returned to
work following medical leave; (2) wrongfully terminated her
employment in violation of the ADA; and (3) subjected her to
“general harassment.” [Id.].
August 2016, four of the named Defendants filed a motion for
summary judgment. [Kotsias I, Doc. 38]. The other
remaining Defendant, ESIS, filed a motion to dismiss.
[Kotsias I, Doc. 31]. On September 29, 2016, the
Magistrate Judge issued a Memorandum and Recommendation,
recommending that the motion to dismiss be granted on the
grounds that ESIS, as a workers' compensation carrier,
was not the Plaintiff's “employer” within the
meaning of Title VII or the ADA. [Kotsias I, Doc.
50]. On October 13, 2016, the Plaintiff objected to the
Magistrate Judge's proposed conclusions of law.
[Kotsias I, Doc. 59]. In her Objections, the
Plaintiff requested leave to amend to assert additional
factual allegations against ESIS. [Id.].
the Plaintiff's Objections and the motions for summary
judgment were pending in Kotsias I, the Plaintiff
filed the present action (“Kotsias II”).
In Kotsias II, the Plaintiff names the same
Defendants as those identified in Kotsias I, plus
several new entities -- Salus Rehabilitation, LLC; Centennial
Healthcare Holding Company, LLC; Emerald Ridge Healthcare,
LLC, d/b/a Emerald Ridge Rehab and Care Center; and The Oaks
at Sweeten Creek Healthcare, LLC, d/b/a The Oaks at Sweeten
Creek. The Plaintiff alleges that all of these Defendants,
the original Defendants and the newly added ones, are part of
an “integrated enterprise” that constitute her
employer. The Defendants that are alleged to be part of this
integrated enterprise are collectively referred to herein as
“the Consulate Defendants.”
Kotsias II, the Plaintiff alleges that the Consulate
Defendants conspired with their workers' compensation
insurance carrier ESIS, their legal counsel Kelly Christie
(formerly Ongie), and third-party claims administrator Work
Comp Strategic Solutions, to take “material adverse
employment actions” against her including
“failure to accommodate, wrongful termination,
harassment, interference and retaliation.” [Kotsias
II, Doc. 1 at 2 ¶ 2]. The Plaintiff specifically
asserts three causes of action in Kotsias II: (1)
civil conspiracy to violate the ADA; (2) discrimination in
violation of the ADA; and (3) retaliation in violation of the
ADA. The Plaintiff, however, relies on the same operative
factual allegations asserted in Kotsias I to support
her civil conspiracy and disability discrimination claims.
Specifically, she recounts her 2011 work-place injury; the
leave she took and the medical treatment she received
following the injury; her return to work; the Consulate
Defendants' and ESIS's alleged refusal to accommodate
her; the general treatment she received from employees of
ESIS and the Consulate Defendants; and the ultimate
termination of her employment. [Id.]. The only new
material factual allegations in Kotsias II relate to
her retaliation claim based on the Consulate Defendants'
alleged failure to rehire her for two positions after her
termination but before she filed Kotsias I.
Specifically, the Plaintiff alleges that the Consulate
Defendants refused to hire her for a clerk/receptionist
position at Emerald Ridge on September 9, 10, or 24, 2014;
and that they refused to hire her for a clerk/receptionist
position at The Oaks on September 8 or 9, 2015. [Kotsias
II, Doc. 2 at 5 ¶¶ 4-5].
December 2016, the Court overruled the Plaintiff's
Objections in Kotsias I and accepted the Magistrate
Judge's Recommendation that ESIS should be dismissed.
[Kotsias I, Doc. 70]. In addressing the
Plaintiff's Objections, the Court also denied the
Plaintiff's request to amend her allegations with respect
to ESIS as untimely, noting that the Plaintiff had waited
until after the Magistrate Judge had issued his Memorandum
and Recommendation before making her request. The Court also
noted that her proposed amendment would be futile.
[Kotsias I, Doc. 70 at 2-3].
January 2017, all of the Defendants named in Kotsias
II filed Motions to Dismiss the Plaintiff's
Complaint on varying grounds. [See Kotsias II, Docs.
15, 17, 22].
Kotsias I the discovery period had long since
closed, the Defendants had moved for summary judgment, and
the motions deadline had passed. The Court denied the
Defendants' motions for summary judgment, and on May 8,
2017, the case was called for trial. The Plaintiff, however,
did not appear. The Defendants then moved to dismiss the
action due to the Plaintiff's failure to prosecute.
[Kotsias I, Doc. 107]. The Court granted the
Defendants' Motion in open court but ordered the parties
to submit supplemental briefing as to whether such dismissal
should be with or without prejudice. [Kotsias I,
Minute Order dated May 8, 2017]. On August 8, 2017, the Court
entered an Order in Kotsias I dismissing the
Plaintiff's claims with prejudice in light of her failure
to prosecute. [Kotsias I, Doc. 116]. No. appeal has
been taken, and Kotsias I therefore is concluded.
on August 28, 2017, the Magistrate Judge issued a Memorandum
and Recommendation in Kotsias II, recommending that:
(1) all of the Plaintiff's civil conspiracy claims should
be dismissed and (2) all of the Defendants should be
dismissed with the exception of the Consulate Defendants. As
for the Consulate Defendants' Motion, the Magistrate
Judge denied such motion with leave to renew and instructed
the Consulate Defendants to address in their renewed motion
the issue of whether the Plaintiff's claims were barred
by res judicata in light of the dismissal of Kotsias
I. [Kotsias II, Doc. 28]. The Court
subsequently accepted the Magistrate Judge's Memorandum
and Recommendation, over the Plaintiff's Objections, on
September 29, 2017. [Kotsias II, Doc. 34].
response to the Magistrate Judge's Memorandum, the
Consulate Defendants submitted a Supplemental Memorandum of
Law in Support of their Motion to Dismiss, to which the
Plaintiff filed a Response and the Consulate Defendants
submitted a Reply. [See Kotsias II at Docs. 29, 31,
35]. The Consulate Defendants formally renewed their Motion
to Dismiss on March 20, 2018, arguing inter alia
that the Plaintiff is barred from litigating any the claims
asserted against the Consulate Defendants in Kotsias
II under the doctrine of res judicata. [Doc. 36]. The
Plaintiff has not filed a Response to the renewed Motion to
STANDARD OF REVIEW
central issue for resolving a Rule 12(b)(6) motion is whether
the claims state a plausible claim for relief. See
Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir.
2009). In considering the Defendants' motion, the Court
accepts the allegations in the Complaint as true and
construes them in the light most favorable to the Plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588
F.3d at 190-92. Although the Court accepts well-pled facts as
true, it is not required to accept “legal conclusions,
elements of a cause ...