at this time i hear some versus the state of connecticut employment discrimination plaintiffs face when during litigation one discrete adverse employment action the employer takes a different unrelated adverse  one place in the prior complaint how many places you need what occurred judge was that april eighth two thousand and thirteen there was an ego see filing that made a great deal of complaints the adverse employment action being a suspension that occurred the federal case in that folds one was then filed july twenty third twenty fourteen during in fact one thousand days after the defendants filed motions to dismiss in that case both the state and the town of oxford and the individual defendants mr sauls was terminated on january sixteenth two thousand and fifteen our supreme court in the morgan case which i have cited in our brief makes it very plain that this is a discrete action this is a discre action of adverse employment a discrete adverse employment action that requires the exhaustion of an administrative remedy so mr sol's officer souls at the time was faced with either attempting to graft this onto a complaint that was in the process of being dismissed and was subsequently dismissed as a result of the motions of the defendants and face the very  potent argument i think the dispositive argument that he failed to exhaust his administrative remedies pursuant to national road passenger corporation versus morgan to be disputed in the response to the motion to dismiss you specifically said in the judged wrongly that it was placed in the response having occurred in one thousand days prior as evidence of further adverse employment action however our case our circuit case in computer associates international vs altai which won twenty six for the third three sixty five makes plame says that what controls the litigation is framed by what is in the conic case and this was this law was correctly applied in that case and says look you know basically it's fair for me to refer to such things that are factual occurrences simply put in there in a motion to dismiss there was not an administrative exhaustion of remedies and then there would be no basis for the court to there would be a good basis for the defendants to move to dismiss that action may i ask why you were raising the terminations as a further on lawful act except basically to amend your complaint to add that claim it was referred to the law provides for conforming the complaint to the police to the record in the pleadings right absolutely absolutely just wrong it was referred to in there in the context of and in fact it would be analogous to dictate that first page first paragraph again i'm asking you what it seems to me that you were alleging this to say there is stillmore violations that were being subjected to and the most recent is unlawful termination am i missing something if this case was appropriate for amendment and now one must also bear in mind what stage the case was at it was post file post filing motions to dismiss but if it was amenable to amendment the matter would have had to have referred to retaliation for filing the e e o c claim in the case and i started out by noting that that matter retaliation case for filing the federal claim and not the e e o c claim our law in the context of retaliation proof is that temporal proximity is very important in demonstrating retaliation so if there were an amendment here first of all there was not a case that was alleging retaliation based on the e e o c filing it was based upon the federal claim being filed secondly as in the you're too exhausted would've been a slam dunk for the defense to say look there's no temporal proximity between an e o c claim that was made two years prior and this terminations i have read reserve some time from the bottle would glad to answer any questions at this point but honour's assistant attorney general colleen valentine here on behalf of the state of connecticut defendants the connecticut department of emergency services and public protection your honour's the state defendants request that this court affirm the district court's dismissal of the plaintiff's amended complaint in this matter on either race judicata grounds or the alternative grounds for firm and which have been identified as with respect to the state defendants the fact that one count is barred by the eleventh amendment collateral stoppel applies for some of the claims the plaintiff has failed to plead that the state of connecticut or desk be where his employer at any time and also that the plaintiff's claims are simply not plausible with respect to the race judicata argument the reason we're here on that is that the plaintiff not only raised it directly to the district court but he also raised it this court and this court reviewed not only the complaints in sewell's one but also all of the pleadings and this court knowing full well that the plaintiff had raised the issue of terminations stated based on all of the facts in the record given soules complete failure to remedy the defects in his original complaint with his first opportunity to amend and the absence of any proposed amendments we concur with the district court that any further amendment would be futile this case is the same situation the complaint is virtually unchanged from the two complaints filed  schools one the two souls complaints in schools to have the same defects that are present and so with respect to the terminations being a discrete act i certainly agree that ordinarily it would be but there are exceptions that would allow the plaintiff to proceed with his terminations claim in sewell's one but he didn't have to do that he could have chosen not to and if he hadn't raised those issues to the district court and then again to this court in support of his appeal i don't think that we would be here but because he willingly raise those issues and he was doing it  is every matter that was offered and received to sustain or defeat a cause of action i don't think that there's any question that the plaintiff was offering the terminations of his employment as a further basis to defeat the motion to dismiss in that case and then offered it again to disport in support of his appeal with respect to the alternative grounds the plaintiffs did not file a reply brief and so i don't have too much to say about that because i think that it's all been adequately briefed but i do just want to to hit on on one point which is that this is the second case in which it's been identified to the plaintiff that neither the state of connecticut nor the department of emergency services and public protection is his employer and the claims that are being brought in this case against those two defendants are brought under title seven under the connecticut fair employment practices act and under the americans with disabilities act all three of those at all and also the rehabilitation act all four of those rather statutes require an employment relationship and the plaintiff has plainly pled that he is employed by the town of oxford the only conceivable link that the plaintiff has offered in support of the reason he has brought the state of connecticut defendants and is that there was a state trooper that was assigned to work with him but the plaintiff has not alleged that the state trooper was acting as the principal while the town of oxford was the understand your position the town the state defendants were dismissed by the district court for lack of service of process the district court then went on with respect to other defendants to explain why plaintiff failed to state a claim so you're seeking the benefit of that ruling that he failed to state a claim as to why you don't get to be brought in now big because that wasn't the ground for dismissing your client at the district court level honor the state of connecticut defendants were dismissed vary on on a different legal basis all of the other grounds for dismissal had been raised but the only one that applied to them at that time was was the lack of service but the case was allowed to continue as to a state trooper a trooper saw scape in his individual capacity and so to the extent that there were claims made against him i certainly believe that that the the state of connecticut is in pretty with him and so they collateral estoppel i think issue would apply with respect to him but the issue that i think is more important is simply that the state of connecticut isn't his it's not his employer and he hasn't played that in any of his four complaints that the state of connecticut satisfy the legal criteria for liability in either and any of the four grounds that he raised against them good morning please the court my name is dennis de mayo i represent the town of oxford was a defendant appellee i want to quickly discuss something that plaintiff's counsel raised one of the arguments in this appeal is that his terminations could have been raised because he had to exhaust his ministry of remedies agree under certain circumstances termination as a discrete act for which exhaustion is required whether there are exceptions to the exhaustion poorman one being when an individual's retaliated for engaging in certain protective activity now the argument here is i was retaliated against  terminated because of my complaint rather than my that's a distinction without a difference in all honesty they're both protected activity at least one court within the circus already noted very recently that whether it's in the sea charge or a complaint that that would satisfy the reasonably related exception and as a result the exhaustion argument should not be considered counsel at the ready discussed quite in depth the race to the cot issue and i think the court has recently grasped that and so rather than echo what they have said i think i'll just jump to my alternative grounds as well similar to the state of this really true alternative grounds that we raise in our brief the first being cloud will stop all and the second being simply implausible allegations with respect to collateral stoppel we're left with here is a disability claim actual and or perceived before this court already was a complaint that is virtually identical to the one insoles to this found that that complaint failed to satisfy twamley or the comprehensibility in finding that the court necessarily determined already that the had not alleged that he was disabled within the meaning of the a d f a when you look at the complaint as before this court now has the same allegations and as a result the plaintiff shouldn't be allowed to argue that he is in fact disabled under the a b a is he allowed to argue for purposes of rehabilitation act that he had a good faith basis if not a meritorious one for suing and that you retaliated against him isn't isn't that the thrust of his complaint under the idea in the read in the rehab back that i would agree with that you're all right however tell me why that fails the retaliation claim well or the a da if if if what we're talking about is not whether he's disabled or perceived of his disabled but that he had a good faith basis for suing you for that he lost because he didn't plead enough facts but he had to he says he says he had a good faith basis and that you extent that the argument is there is a good faith basis to believe that he was disabled or certain he was disabled i think that claim i think that argument fails based on the decisions of the court already the report found that he wasn't disabled and based on he didn't have a good faith basis to plead disability i would agree that there's a distinction all right so do we have a finding as to the latter here i don't think squarely your honor i don't believe we don't we do not know how how where does that leave us on review on appeal well i think rather than go specifically to the retaliation claim as in order to my brief the complaint indicates that the plaintiff has been a victim of discrimination harassment and retaliation and so to the extent that he was attempting to really raise discrimination claims absent retaliation aside from that tell us let me let me assume for purposes of my question that we agree with you with that on that i'm just asking how we can also conclude that is retaliation claim goes i don't think it has to go with respect to that argument and then finally with respect to the implausibility there's supposed to be a title seven claim there's no allegation of race color sex or anything like that and if there are no additional questions from your honour's almost all my brief so i understand where you agree then that the retaliation claim is viable no i think the retaliation claim is gone because of race judicata but you just agreed that there'd been no finding that he didn't have a good faith basis for bringing it disability klein right but the district court did that in fact the determination had been raised in the first case there was a there were discrimination retaliation and harassment claims race or at least a court right into the complaint that those existed and as a result he would have actually raised that claim are ready and therefore he can't raise it again now thank you very much not going to address the town's alternative basis for upholding us i think that your honor is put to courts finger on that matter and that there was no finding that there was not a good faith basis and retaliation claim would proceed under that analysis but that wouldn't matter that we few raised it in the first appeal in the first case and that wasn't then challenged on appeal right that would still be our court is very clear in morgan that we need to exhaust that administrative remedy before filing and alpha no versus costello and the buts case as well cited on page fourteen of my brief that are good law in our circuit give the only possible exceptions to that and it's not a vague exception of retaliation being alleged the second exception in these cases says  alleges retaliation the second suit alleges or the the amended suit alleges retaliation for filing the e e o c charge i've discussed that already there is a significant distinction and difference between a federal lawsuit before a jury he ended the administrative charge council wishes to conflate those two because then the defendant could say that oh here was where you could go ahead and mend the case and i would say that what you're alleging is that the same the same course of discrimination and hostility that that was raised in the first case as you claimed in the first case to determination reasonable relation is also and an excellent question and benchmark and they are not reasonably related when the allegation in the second souls two is retaliation for having brought a claim of disability discrimination in the first case there was military discrimination there were other there were first amendment issues to due process issues those are not reasonably related to a subsequent termination four in retaliation for having brought the first case it's an oxymoron to say that one could plead retaliate for a case for a case retaliatory terminations for having brought a case i'm saying i'm saying that having brought the claim that in a federal action that he was terminated in retaliation for for for bringing a disability discrimination mentioned the terminations you know in one place in a motion in response to a motion dismissed but not in the in a complaint as the law requires and my response was this is not subject to the funnel carves out the defendant as pointed out because it's not based upon the e e o c claim it is based upon a federal action alleging discriminatory conduct based upon discrimination before you sit down can you tell me what you good faith basis is for suing the state of connecticut is your client's employer absolutely there the town of oxford utilizes a connecticut statutory provision in which v connecticut state police provide what's called a resident trooper the resident trooper supervises disciplines hands out over time monitors and in this case took many different actions against officer souls in both disciplinary and other traditional employment actions paid by the town or by the state it's it's it's really unclear as to what that breakdown is because that both the town and the state of connecticut have oversight of the employer i don't understand how that makes how that makes the state of connecticut your clients employer i mean someone else may may exercise supervision one can imagine this in private circumstances two on a construction job someone who works for another employer may supervise someone from another area but that doesn't make them the employer for purposes of the statutes which the good faith basis to be good you have any case that allowed you to conclude that the state of connecticut was your client's employer based upon the connecticut statutory provision that provided for right but you have no case that says that that the end then makes the state of connecticut  the employer of your client right i don't have a case to present and why isn't the state of connecticut shielded by by the eleventh amendment from these this action in any event i think that the state of connecticut is