Elkadrawy v. Vanguard Group, Inc.

• Decision Date: 06 October 2009
• Docket Number: No. 09-1206.,No. 09-1105.,09-1105.,09-1206.
• Citation: 584 F.3d 169
• Parties: Emad ELKADRAWY, Appellant/Cross-Appellee v. The VANGUARD GROUP, INC., Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Third Circuit

584 F.3d 169

Emad ELKADRAWY, Appellant/Cross-Appellee v. The VANGUARD GROUP, INC., Appellee/Cross-Appellant.

No. 09-1105.

No. 09-1206.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) September 21, 2009.

Opinion Filed: October 6, 2009.

Olugbenga O. Abiona, Esq., Philadelphia, PA, for Appellant/Cross-Appellee, Emad Elkadrawy.

Joseph J. Costello, Esq., Sean W. Sloan, Esq., Morgan, Lewis & Bockius, Philadelphia, PA, for Appellee/Cross-Appellant, The Vanguard Group, Inc.

Before: BARRY, FISHER and JORDAN, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

In a complaint dated May 1, 2008, plaintiff Emad Elkadrawy, an American citizen of Egyptian origin and a Muslim, alleged that his former employer, The Vanguard Group, Inc. ("Vanguard"), discriminated against him on account of his race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and his age under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. On August 12, 2008, the District Court (Dalzell, J.) dismissed Elkadrawy's complaint for his failure to bring his claims within the ninety-day period mandated by 42 U.S.C. § 2000e-5(f)(1).

On September 8, 2008, Elkadrawy filed a second complaint, alleging race- and national origin-based discrimination and retaliation in violation of 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons.Stat. § 962 et seq., also against Vanguard. On December 5, 2008, the District Court (Tucker, J.) dismissed Elkadrawy's federal claims as barred by the doctrine of res judicata. The Court also dismissed the PHRA claim without prejudice to its renewal in state court. The parties' cross-appeals followed.

Elkadrawy challenges the dismissal of his federal claims, arguing that res judicata does not apply because (1) his prior complaint had not been resolved "on the merits" and (2) his § 1981 claims do not arise from the same material facts as his Title VII claims. Vanguard, on cross-appeal, argues that the District Court should have dismissed the PHRA claim with prejudice on res judicata grounds, because it is based on the same set of facts underlying the Title VII claims dismissed as part of Elkadrawy's first complaint. We will affirm.

I.

Elkadrawy was employed as a corporate accountant for Vanguard from October 2000 until December 2007. On May 21, 2007, he filed a charge of discrimination with the Pennsylvania Human Rights Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). On February 4, 2008, the EEOC notified him that it was closing his file and provided notice of his right to sue. He received substantially the same notice from the PHRC by its letter of April 21, 2008.

On May 1, 2008, Elkadrawy filed a pro se form complaint, with his EEOC charge and right-to-sue letter attached thereto. His PHRC notice was not attached and his filing with the PHRC was only obliquely mentioned in the EEOC charge. The complaint alleged (1) that Vanguard refused to provide the work experience and verification he needed to become a Certified Public Accountant, even though similarly situated co-workers were routinely afforded that opportunity, and (2) that he received a poor performance review four days after filing with the EEOC. Although his complaint named Vanguard as the only defendant, Elkadrawy mentioned three specific Vanguard employees. Elkadrawy also filed a motion to proceed in forma pauperis, which was denied on May 5, 2008. On May 13, 2008, he paid his filing fee, and his complaint was docketed. On May 27, 2008, counsel entered an appearance on his behalf.

On August 12, 2008, Judge Dalzell dismissed Elkadrawy's first complaint with prejudice as time-barred. The Court observed that Elkadrawy constructively received his EEOC right-to-sue letter on February 7, 2008. Elkadrawy paid his filing fee on May 13, 2008, ninety-two days after his receipt of the right-to-sue letter, and therefore in violation of 42 U.S.C. § 2000e-5(f)(1).¹

Elkadrawy filed his counseled second complaint on September 8, 2008. The allegations in that complaint can be divided into two groups. The allegations of discrimination set forth at ¶¶ 11-19 are indistinguishable from the allegations contained in his EEOC filing and first complaint. In his brief to us, Elkadrawy explains that these allegations were included in his second complaint only to support his previously unraised PHRA claims. The allegations at ¶¶ 20-29 constitute new claims, raised in neither the EEOC charge nor the first complaint, which implicate previously unmentioned Vanguard employees.² Elkadrawy asserts that these allegations support only the § 1981 claims.

Vanguard moved to dismiss Elkadrawy's second complaint in its entirety on res judicata grounds. As to the federal claims, the District Court held that Elkadrawy's "current § 1981 claims and previous Title VII claims quite clearly rest upon the same facts of alleged discrimination by Defendant, and would require presentation of the same evidence." (App. 4-5 n. 1.) As "[t]he ninety-day filing requirement for Title VII claims has been treated by the courts as a statute of limitations," and "[t]he rules of finality ... treat a dismissal on statute-of-limitations grounds as a judgment on the merits," the Court found the federal claims precluded. (Id. (citations omitted).) The Court then noted that, pursuant to the PHRA, 43 Pa. Cons.Stat. § 962(c), Elkadrawy had two years from the dismissal of his complaint by the PHRC to file suit against Vanguard. As that time had not elapsed by the filing of the second complaint, and the ninety-day limitation that required dismissal of the first complaint was inapplicable to Elkadrawy's PHRA claim, the Court concluded that res judicata did not apply and dismissed that claim without prejudice to it being reraised in state court. Although not explicitly stated, we infer that the Court declined to exercise supplemental jurisdiction over the remnant PHRA claim under 28 U.S.C. § 1367(c)(3).

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Our review of an application of res judicata is plenary. See Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir.2006). We review a district court's refusal to exercise supplemental jurisdiction for abuse of discretion. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.1999).

III.

In order to prevail on a defense of res judicata, a defendant must demonstrate that there has been: (1) a final judgment on the merits in a prior suit; (2) involving the same parties or their privies; and (3) a subsequent suit based on the same cause of action. Lubrizol Corp. v Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). Only the first and third of these considerations are at issue in this appeal.

A. The Dismissal of Elkadrawy's Federal Claims With Prejudice

Elkadrawy claims, first, that res judicata does not apply because the District Court dismissed his first complaint on technical procedural grounds, not on the merits. This is incorrect. Section 2000e-5(f)(1) requires that claims brought under Title VII be filed within ninety days of the claimant's receipt of the EEOC right to sue letter. 42 U.S.C. § 2000e-5(f)(1). We treat this requirement as a statute of limitations rather than a jurisdictional prerequisite to suit. See Figueroa, 188 F.3d at 176. "The rules of finality ... treat a dismissal on statute-of-limitations grounds ... as a judgment on the merits." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); see also Fed.R.Civ.P. 41(b) ("[A]ny dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19— operates as an adjudication on the merits.").

While we have yet to address this issue in the context of successive discrimination claims, other circuits have done so. In Nilsen v. City of Moss Point, 701 F.2d 556 (5th Cir.1983), the Fifth Circuit dismissed the plaintiff's § 1983 claims because earlier Title VII claims were dismissed as untimely. Id. at 562. The Eighth Circuit puts it succinctly: "a disposition of a Title VII action as untimely filed is a decision on the merits for purposes of res judicata." Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989) (dismissing the plaintiff's second complaint raising § 1981 claims). In the absence of countervailing precedent, we adopt the reasoning of our sister circuits and conclude that Vanguard satisfies the "on the merits" prong of the res judicata analysis.

The closer question is whether Elkadrawy's § 1981 claims arise from the same set of facts as his Title VII claims. This analysis does not depend on the specific legal theory invoked, but rather "the essential similarity of the underlying events giving rise to the various legal claims." Davis v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir.1982). "[T]he focal points of our analysis are whether the acts complained of were the same, whether the material facts alleged in each suit were the same and whether the witnesses and documentation required to prove such allegations were the same." United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir.1984). Moreover, "res judicata bars not only claims that were brought in the previous action, but also claims that could have been brought." See Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir.2007).

It does not matter for res judicata purposes that Elkadrawy proceeds under § 1981 rather than Title VII. He concedes that the allegations set forth at ¶¶ 11-19 of his second complaint are indistinguishable from the allegations in his first complaint and, thus, that his federal claims would be barred if these were the only allegations raised. But he insists that the remaining factual allegations in his second...