Pleming v. Universal-Rundle Corp., UNIVERSAL-RUNDLE

Citation142 F.3d 1354
Decision Date08 June 1998
Docket NumberUNIVERSAL-RUNDLE,No. 97-8170,97-8170
Parties74 Empl. Prac. Dec. P 45,543, 11 Fla. L. Weekly Fed. C 1455 Sandra L. PLEMING, Plaintiff-Appellant, v.CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Ethel L. Munson, Atlanta, GA, for Plaintiff-Appellant.

Donald B. Harden, Kenneth J. Barr, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and COHILL *, Senior District Judge.

BIRCH, Circuit Judge:

This appeal requires us to address whether the doctrines of res judicata or collateral estoppel bar a cause of action for employment discrimination and retaliation. In the course of prior litigation, the parties briefed and discussed the incidents giving rise to the complaint in the present case but never amended the pleadings in the first litigation to include a claim based on the incidents. The plaintiff-appellant maintains that, because our precedents did not require her to amend her complaint to include claims based on incidents of alleged discrimination discovered after she filed her first lawsuit, res judicata and collateral estoppel cannot now prevent her from bringing the discovered claims in a second lawsuit. The district court found that the plaintiff-appellant had asserted the subsequent incidents before the first court and, therefore, held that res judicata or, alternatively, collateral estoppel barred the suit. We disagree and REVERSE.

BACKGROUND

In the summer of 1992, plaintiff-appellant, Sandra L. Pleming, suffered a back injury while she worked as a laborer for defendant-appellee, Universal-Rundle Corporation ("Universal-Rundle"). In July 1993, she applied for a clerical position that would have been less physically demanding but would have paid her less than what she earned as a laborer. Although apparently qualified for the position, Pleming did not receive the job. In August 1994, Pleming filed an employment discrimination lawsuit in federal district court alleging that Universal-Rundle had discriminated against her based on her race and disability. Pleming's complaint relied on Title VII, 42 U.S.C. § 2000e, et. seq., and 42 U.S.C. § 1981. Although Pleming stated a prima facie case of discrimination, Universal-Rundle explained that it had not hired Pleming for the clerical position because the company had a policy against allowing employees to transfer to lower paying jobs.

In October 1994, during the course of the litigation, two additional clerical positions of the type Pleming sought opened at Universal-Rundle. Pleming did not apply for either of these positions and the company filled them with other applicants. In fact, Pleming did not learn about these additional positions at Universal-Rundle until May 1995, during the course of discovery. Although Pleming never amended her complaint to include allegations of discrimination arising out of these incidents, she described the incidents in her briefs before the magistrate On January 30, 1996, after the district court entered summary judgment in favor of Universal-Rundle in Pleming I, Pleming filed another complaint in federal district court alleging discrimination and retaliation against her in the company's decision to hire other applicants for the October 1994 clerical openings. Pleming based her claims in this second lawsuit on 42 U.S.C. § 1981. Universal-Rundle moved to dismiss the complaint on the ground that either res judicata or collateral estoppel barred the suit because Pleming had already litigated and lost on her claims arising out of the October 1994 hiring decisions. The district court agreed and dismissed Pleming's complaint.

judge and the district court. Pleming sought to use these incidents to prove that Universal-Rundle's policy was a pretext for discrimination and thus avoid summary judgment on her claims arising out of the July 1993 hiring decision. A magistrate judge found that Pleming's claims of racial discrimination were sufficient to withstand Universal-Rundle's motion for summary judgment. The magistrate judge's report and recommendation (the "report") included a reference to the two clerical positions that Universal-Rundle had filled after Pleming filed her complaint. The district court, however, granted summary judgment in favor of Universal-Rundle, finding that Pleming had failed to prove that the company's non-discriminatory explanation was pretext, and a panel of this court affirmed without opinion. See Pleming v. Universal-Rundle Corp., No. 1:94-cv-2004-RLV, slip. op. (N.D.Ga. Nov. 22, 1995), aff'd, 100 F.3d 971 (11th Cir.1996) ("Pleming I ").

DISCUSSION

We subject the district court's decision to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b) to de novo review. See In re Johannessen, 76 F.3d 347, 349 (11th Cir.1996). Although the parties are in essential agreement about the material facts of the case, we assume the allegations of the plaintiff's complaint to be true and construe the facts in the light most favorable to the plaintiff. Id. at 350.

I. Res Judicata

First, we address the district court's holding that the principles of res judicata barred Pleming's second lawsuit. As the district court correctly observed, the doctrine of res judicata provides repose by preventing the relitigation of claims that have already been fully litigated and decided. Res judicata, or claim preclusion, bars a subsequent claim when a court of competent jurisdiction entered a final judgment on the merits of the same cause of action in a prior lawsuit between the same parties. See I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1549 (11th Cir.1986). 1 Pleming concedes that, if her second suit involves the same cause of action decided in Pleming I, res judicata bars this litigation because her case satisfies all the other elements of the doctrine.

The determination of whether a litigant has asserted the same cause of action in two proceedings depends upon whether the primary right and duty are the same in both cases. See Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir.1992). Res judicata acts as a bar "not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same operative nucleus of fact."

Id. at 1358-59 (quoting NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir.1990) (internal quotation omitted)). A court, therefore, must examine the factual issues that must be resolved in the second suit and compare them with the issues explored in the first case. Id. at 1359.

Pleming's first lawsuit claimed that Universal-Rundle discriminated against her when the company hired a less qualified white employee for a specific clerical position in July 1993. Pleming did not learn that the company had engaged in alleged further discrimination against her by filling two subsequent administrative openings in October 1994 without considering her, until May 1995, during the conduct of discovery in the first lawsuit. Pleming's first complaint, therefore, contained no mention of these subsequent hiring decisions and Pleming did not amend her complaint to include them.

In Manning, we considered a situation in which a plaintiff elected not to participate in an employment discrimination class-action but brought a second suit alleging employment discrimination against the same defendant. The operative facts that gave rise to the plaintiff's claims for discrimination had not occurred when the class filed its claim but some of those facts occurred before the district court dismissed the plaintiff from the class action. The Manning plaintiff, therefore, had an opportunity to preserve her claims in the class action by filing a supplemental pleading or by participating in discovery in that case. See id. at 1359. We, however, observed that Federal Rule of Civil Procedure 15(d), which governs supplemental pleadings, makes such a pleading optional and held that the doctrine of res judicata does not punish a plaintiff for exercising the option not to supplement the pleadings with an after-acquired claim. Id. at 1360. We explained that the parties frame the scope of litigation at the time the complaint is filed and that a judgment is only conclusive regarding the matters that the parties might have litigated at that time but not regarding "new rights acquired, pending the action which might have been, but which were not required to be litigated." Id. (quoting Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th Cir.1984)) (internal quotations omitted). We then explained that:

[W]e do not believe that the res judicata preclusion of claims that "could have been brought" in earlier litigation includes claims which arise after the original pleading is filed in the earlier litigation. Instead, we believe that, for res judicata purposes, claims that "could have been brought" are claims in existence at the time the original complaint is filed or claims actually asserted by supplemental pleadings or otherwise in the earlier action.

Id. (second emphasis added) (footnote omitted); see also Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 374 n. 2 (5th Cir.1980) (arriving at a similar conclusion). 2

The parties in this case agree that the events giving rise to Pleming II arose well after Pleming filed and amended her complaint in the first lawsuit. The parties also agree that, given our holding in Manning, Pleming was under no obligation to amend or supplement her complaint and that she did not do so. Universal-Rundle, however, points out that the Manning opinion left open the possibility that a litigant could assert a claim by other means and contends that Pleming actually asserted her claims arising out of the October 1994 hiring decisions in the Pleming I proceedings by including those incidents in her briefs. Pleming admits that...

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