Nilsen v. City of Moss Point, Miss.

Decision Date01 April 1983
Docket NumberNo. 81-4055,81-4055
Citation701 F.2d 556
Parties31 Fair Empl.Prac.Cas. 612, 31 Empl. Prac. Dec. P 33,490 Agnes E. NILSEN, Plaintiff-Appellant, v. The CITY OF MOSS POINT, MISSISSIPPI, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Thomas R. Sabin, Kirkland, Wash., for plaintiff-appellant.

Dalton McBee, Jr., M. Curtiss McKee, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before CLARK, Chief Judge, BROWN, WISDOM, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

Facts and Procedural History

Agnes Nilsen has filed four successive suits on the same claim against the City of Moss Point 1 or its officers and agents. Each complains that the city refused to hire her as a fire fighter directly and solely because of her sex. The first was dismissed without prejudice, for reasons immaterial here. The second and third were consolidated and decided against her by summary judgment for her failure to meet the timely filing requirements of Title VII, pursuant to which the first three suits were brought.

While motion for that judgment was pending, she sought to amend her complaint. Her motion for leave to do so reads, in pertinent part:

19. Plaintiff realleges paragraphs 1 through 18 above and incorporates the same by reference as if set forth in full herein.

20. Plaintiff's cause of action under this count is in equity arising under the provisions of the United States Constitution and amendments thereto, which include, but are not limited to the Fourteenth Amendment to the United States Constitution, the Civil Rights Act of 1871, 42 U.S.C. 1983; and the Civil Rights Act of 1861, 42 U.S.C. 1985(3). Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1337 and 1334.

....

22. The employment practices of the defendants as stated herein above and herein after with respect to plaintiff deny plaintiff her right to equal protection and due process of law under the United States Constitution and amendments thereto, which include, but are not limited to the Fourteenth Amendment to the United States Constitution.

....

As grounds for the above motion, plaintiff would show the following unto the Court:

1. The above and foregoing amendments are based upon the same facts and circumstances as are alleged in the original complaint filed herein.

2. The above and foregoing amendments merely add additional grounds and bases on which plaintiff brings her suit against defendants .... (emphasis added).

Leave to amend was denied; and on appeal we affirmed both the summary judgment and the denial of leave to amend, noting as to the latter "plaintiff's unexplained dilatoriness." Nilsen v. City of Moss Point, 621 F.2d 117, 122 (5th Cir.1980) (Nilsen II/III ). Nothing daunted, Ms. Nilsen filed the present suit, Nilsen IV, advancing again the additional theories set out above--theories that for brevity we shall henceforth refer to as the Sec. 1983 claim or theory--that she had sought to add to Nilsen II/III by the rejected amendment. Again she suffered summary judgment, this time by reason of the bar of the judgment in Nilsen II/III and laches. A panel of our court reversed in a comprehensive and well-written opinion with which we find ourselves in general agreement on most points, detailing the facts of the case more fully than we find it necessary to do for present purposes. 674 F.2d 379 (1982). We granted rehearing en banc and now affirm the judgment of the trial court. 2

Bar

It is patent that, in the words of Ms. Nilsen's motion quoted above, her claims here are based "upon the same facts and circumstances as are alleged [in Nilsen II/III ]": in a word, upon the same transaction. Moreover, the same right, to be free of intentional sex discrimination in employment, is claimed to have been infringed by the same wrong, that discrimination. The primary right and duty asserted and the primary wrong complained of are the same in each action. Only the legal bases advanced for relief are different. 3

The test to be applied is settled in our circuit:

For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases. Stevenson v. International Paper Co., 516 F.2d 103, 108 (5th Cir.1975). The last prong of this test is at issue in this case. Various tests have been advanced to determine whether the substance of two actions is the same for res judicata purposes: Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments? Acree v. Air Line Pilots Association, 390 F.2d 199, 201 (5th Cir.), cert. denied, 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968). This Court has recognized that the principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. Stevenson v. International Paper Co., 516 F.2d 103, 109 (5th Cir.1975) Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir.1979).

By these tests, it is patent that the "cause of action" sought to be asserted today by Ms. Nilsen is the same as that advanced in Nilsen II/III. 4 That the issue presented here was never decided in the former case does not signify; according to general theories of judicial estoppel, to which "federal courts have traditionally adhered," it is black-letter law that res judicata, by contrast to narrower doctrines of issue preclusion, bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication, Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980) (Issue preclusion by state judgment in Sec. 1983 action, dicta that claim preclusion doctrine equally applicable), not merely those that were adjudicated. 5 And it is equally settled that one who has a choice of more than one remedy for a given wrong, as Ms. Nilsen did here, may not assert them serially, in successive actions, but must advance all at once on pain of bar. 6 Appellant cites Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) and Alexander v. Gardner-Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) for the proposition that her Title VII and Sec. 1983 claims are "separate, independent and distinct 'causes of action' for purposes of res judicata." This, we believe, misreads the significance of those cases. Each focused upon the availability of remedies and concluded that it was Congress' intent to construct separate procedural avenues for the vindication of an individual's substantive rights. In addition, each concluded that because of the courts' ability to fashion equitable remedies, in the first instance, a plaintiff could elect to bring suit under as many applicable civil rights statutes as the facts of his case permit irrespective of the actual or potential overlap of statutory remedies. Thus the general principle which emerges is that the utilization of one procedural vehicle to vindicate a substantive right does not preclude employing a parallel procedural vehicle to vindicate the same substantive right. See note 3, supra. Certainly, the elements of a disparate treatment action such as Ms. Nilsen's under Title VII, where intentional discrimination is the claim, are identical to those of Sec. 1983.

Neither Johnson nor Alexander addresses the question before us today: whether all theories of remedy or recovery must, on pain of bar, be joined in a civil rights action arising out of a given transaction. We do not think that, in using such a phrase as "the Sec. 1981 cause of action" while writing on a different question than ours, the Court intended to foreclose the result that we reach today. Especially is this so when we consider, for example, such passages as the following from Johnson:

Petitioner freely concedes that he could have filed his Sec. 1981 action at any time after his cause of action accrued; in fact, we understand him to claim an unfettered right so to do. Thus, in a very real sense, petitioner has slept on his Sec. 1981 rights. The fact that his slumber may have been induced by faith in the adequacy of his Title VII remedy is of little relevance inasmuch as the two remedies are truly independent. Moreover, since petitioner's Title VII court action now also appears to be time barred because of the peculiar procedural history of this case, petitioner in effect, would have us extend the Sec. 1981 cause of action well beyond the life of even his Title VII cause of action.

421 U.S. 454, at 466, 95 S.Ct. 1716, at 1723, 44 L.Ed.2d 295 (emphasis added).

Here, within a few lines, we find "his Sec. 1981 action" apparently used by contrast to "his cause of action," as well as references to Title VII and Sec. 1981, each, both as "remedies" and as "causes of action." To attribute a talismanic quality to these expressions, or to any of them, when the Court was writing without attention to the issue that we face today would be to take form for substance with a vengeance.

As we noted above, the substantive right to be vindicated, if any, is Nilsen's right to be free of such discriminatory practice as would violate the Equal Protection clause of the Fourteenth Amendment. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-618, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). Therefore, any inquiry as to the application of the doctrine of res judicata must go beyond the procedural vehicle utilized to a pragmatic assessment of "whether or not the primary right and duty and delict or wrong are the same in each action." Stevenson v....

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