142 F.3d 1354 (11th Cir. 1998), 97-8170, Pleming v. Universal-Rundle Corp.

Docket Nº:97-8170.
Citation:142 F.3d 1354
Party Name:Weekly Fed. C 1455 Sandra L. PLEMING, Plaintiff-Appellant, v. UNIVERSAL-RUNDLE CORPORATION, Defendant-Appellee.
Case Date:June 08, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1354

142 F.3d 1354 (11th Cir. 1998)

Weekly Fed. C 1455

Sandra L. PLEMING, Plaintiff-Appellant,



No. 97-8170.

United States Court of Appeals, Eleventh Circuit

June 8, 1998

Page 1355

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.


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

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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 ").

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.


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."

Page 1357

Id. at 1358-59 (quoting NAACP v. Hunt, 891 F.2d 1555, 1561...

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