Wilkes v. Wyoming Dept Employment Labor Standards, No. 02-8003.

• Decision Date: 23 December 2002
• Docket Number: No. 02-8003.
• Citation: 314 F.3d 501
• Parties: Lorna WILKES, Plaintiff Appellant, v. WYOMING DEPARTMENT OF EMPLOYMENT DIVISION OF LABOR STANDARDS, Defendant-Appellee. United States of America, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.3d 501

Lorna WILKES, Plaintiff Appellant, v. WYOMING DEPARTMENT OF EMPLOYMENT DIVISION OF LABOR STANDARDS, Defendant-Appellee United States of America, Intervenor.

No. 02-8003.

United States Court of Appeals, Tenth Circuit.

December 23, 2002.

John I. Henley, Vlastos, Henley & Drell, P.C., Casper, WY, for the plaintiff-appellant.

Jay A. Jerde, Senior Assistant Attorney General (Hoke MacMillan, Attorney General, and John W. Renneisen, Deputy Attorney General, with him on the brief), Cheyenne, WY, for the defendant-appellee.

Sarah E. Harrington, (Ralph F. Boyd, Jr., Assistant Attorney General, and Jessica Dunsay Silver with her on the brief), U.S. Department of Justice, Washington, D.C., for the intervenor.

Before BRISCOE, HOLLOWAY, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Lorna Wilkes appeals the district court's grant of summary judgment in favor of the Wyoming Department of Employment (Wyoming DOE). The district court concluded Wilkes' suit against the Wyoming DOE alleging violations of Title VII, 42 U.S.C. § 2000e-2, and the Wyoming Fair Employment Practice Act, Wyo. Stat. Ann. § 27-9-105, was barred by claim preclusion. We affirm.

I.

Wilkes worked as a compliance officer for the Wyoming DOE, Fair Labor Standards Division, from 1990 until March 2000 when she was allegedly constructively discharged. Wilkes applied for a position as lead compliance officer in 1999, but the position was awarded to an employee who had worked as a compliance officer for less than six months, i.e., a probationary employee. According to Wilkes, the employee was awarded the position because she was romantically involved with Wilkes' immediate supervisor, who was on the interview committee and was involved in the hiring decision. Wilkes alleges that when she complained to Charles Rando, acting director of the labor division, he confronted Wilkes' supervisor. Wilkes' supervisor retaliated by following her from job site to job site, making derisive and untrue remarks about and to Wilkes, and inaccurately completing her performance appraisal and placing her on a "work-plan." Wilkes quit her job with the Wyoming DOE in March 2000.

On March 21, 2000, Wilkes timely filed a charge with the EEOC against the Wyoming DOE for retaliating against her in violation of Title VII. On April 10, 2000, Wilkes filed a complaint in federal court against the Wyoming DOE and Rando in his individual capacity. She alleged that the Wyoming DOE paid her less than her male coworkers for the same position, skill, effort, and responsibility, in violation of the Equal Pay Act of the Fair Labor Standards Act, 29 U.S.C. § 206(d). Her claim against Rando was filed pursuant to 42 U.S.C. § 1983 and arose out of the hiring of the probationary employee instead of Wilkes for the position of lead compliance officer. Wilkes further alleged retaliation in violation of her free speech rights and deprivation of her property and liberty interests without due process of law.

On October 12, 2000, the defendants made an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Wilkes accepted the Rule 68 offer on October 16, 2000, and judgment was entered against defendants on October 31, 2000. A satisfaction of judgment was filed by Wilkes on November 9, 2000.

The EEOC issued Wilkes a right-to-sue letter on February 8, 2001. In April 2001, she filed the present action against the Wyoming DOE, alleging violations of Title VII and the Wyoming Fair Employment Practice Act. In June 2001, the Wyoming DOE moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing Wilkes' second action was barred by claim preclusion. Because the district court considered matters outside of the pleadings, it converted the motion to one for summary judgment and granted summary judgment in favor of Wyoming DOE on the basis of claim preclusion.

II.

Wilkes contends the district court erred in granting summary judgment in favor of the Wyoming DOE on the basis of claim preclusion. Specifically, she argues that since she had not yet received a right-to-sue letter from the EEOC, she was statutorily prohibited from raising her Title VII claims in her first lawsuit and, therefore, should not be barred from raising those claims in a subsequent lawsuit.

"In reviewing a grant or denial of summary judgment, we apply the same standard applied by the district court under Federal Rule of Civil Procedure 56(c)." King v. Union Oil Co., 117 F.3d 443, 444-45 (10th Cir.1997). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "Whether the doctrine of res judicata applies to the case before us is a question of law which we review under the de novo standard." Satsky v. Paramount Comm., Inc., 7 F.3d 1464, 1467-68 (10th Cir.1993) (internal citations omitted); see King, 117 F.3d at 445 (stating "[w]here the facts are not in dispute, this court must determine de novo whether the substantive law of res judicata was correctly applied" (internal quotation omitted)).

"Under res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action."¹ Satsky, 7 F.3d at 1467 (internal quotations omitted; emphasis added). "To apply the doctrine of res judicata, three elements must exist: (1) a [final] judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits." King, 117 F.3d at 445.

Here, neither party contests the district court's conclusion that the Rule 68 judgment entered in Wilkes' first lawsuit was a final judgment. Moreover, there is an identity of parties — Wilkes and the Wyoming DOE were parties in both suits. Under such circumstances, claim preclusion bars Wilkes' instant suit if it is based on the same cause of action as her first suit.

In Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1335 (10th Cir.1988), this court adopted the transactional approach of Restatement (Second) of Judgments to determine what constitutes a "cause of action" for claim preclusion purposes. The transactional approach provides that a final judgment extinguishes:

all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose .... What factual grouping constitutes a "transaction," and what groupings constitute a "series," are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, [and] whether they form a convenient trial unit.

Id. at 1335 (quoting Restatement (Second) of Judgments § 24); see also King, 117 F.3d at 445. "Under [the transactional] approach, a cause of action includes all claims or legal theories of recovery that arise from the same transaction, event, or occurrence. All claims arising out of the transaction must therefore be presented in one suit or be barred from subsequent litigation." Nwosun v. General Mills Rest., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997).

This court repeatedly has held that "all claims arising from the same employment relationship constitute the same transaction or series of transactions for claim preclusion purposes." Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir.2000). See Clark v. Haas Group, Inc., 953 F.2d 1235, 1239 (10th Cir.1992) (holding plaintiff's second suit was barred by claim preclusion because "the `claims' in each case were predicated on [plaintiff's] employment"); Yapp, 186 F.3d at 1228 (stating "[t]he court in Clark eliminated all ambiguity in the meaning of `transaction' in this factual context: it stated that the `transaction' was Clark's employment" (internal quotations omitted)). In Clark and Yapp, the plaintiffs brought actions against their former employers under the Fair Labor Standards Act, 29 U.S.C. § 216(b), for unpaid overtime compensation, and later brought second actions against their former employers for wrongful discharge. On appeal, this court held that plaintiffs' second suits were precluded since they were based upon the same transactions, i.e., the employment relationships.

The relevant facts in this case are substantially similar to those in Clark and Yapp. Wilkes filed suit against her former employer for equal pay under section 206(d) of the Fair Labor Standards Act and later filed suit against her former employer for wrongful discharge, i.e., constructive discharge based on gender discrimination and retaliation. As in Clark and Yapp, Wilkes' first and second lawsuits arose from the same transaction — her employment relationship with the Wyoming DOE. "Consequently, we are not free to transactionally distinguish wrongful termination claims from those claims arising out of the employment but before and unrelated to the discharge." Yapp, 186 F.3d at 1228.

Wilkes' reliance on Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223 (7th Cir.1993), is misplaced. In Herrmann, the plaintiff filed suit against her former employer under the continuation of benefits provision of ERISA, 29 U.S.C. §§ 1161-1168, and later filed a second suit against her former employer under Title VII. On appeal, the Seventh Circuit concluded that under the transactional test, "two claims are one ... if they are based on the same, or nearly the same, factual allegations." Id. at 226. In applying that standard, the Herrmann court held that because the plaintiff's claims were based on different factual allegations, and had little or no factual overlap, the two claims were not so related for purposes of claim preclusion as to bar the plaintiff from bringing her Title VII claim in a second suit. Although the standard set forth in Herrmann would require...