Harrington v. Vandalia-Butler Bd. of Educ.

• Decision Date: 22 May 1981
• Docket Number: VANDALIA-BUTLER,No. 79-3552,79-3552
• Citation: 649 F.2d 434
• Parties: 25 Fair Empl.Prac.Cas. 1257, 26 Empl. Prac. Dec. P 31,858 Jeanne HARRINGTON, Plaintiff-Appellant, v.BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 434

649 F.2d 434

25 Fair Empl.Prac.Cas. 1257,

26 Empl. Prac. Dec. P 31,858

Jeanne HARRINGTON, Plaintiff-Appellant, v. VANDALIA-BUTLER BOARD OF EDUCATION et al., Defendants-Appellees.

No. 79-3552.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 11, 1981.

Decided May 22, 1981.

Barbara Kaye Besser, Charles E. Guerrier, Cleveland, Ohio, Randal S. Bloch, Cincinnati, Ohio, for plaintiff-appellant.

Larry A. Smith, Michael J. Burdge, Dayton, Ohio, for Vandalia Bd.

William H. Thornburgh, Dayton, Ohio, for Clay and Gibson.

Before GEORGE CLIFTON EDWARDS, Jr., Chief Judge, ENGEL and BOYCE F. MARTIN, Jr., Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

In 1974, Jeanne Harrington filed suit in the United States District Court for the Southern District of Ohio against the Vandalia-Butler Board of Education, alleging sex discrimination in employment and seeking relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. After a bench trial in June, 1976, the court found that she had been discriminated against in violation of Title VII and awarded compensatory damages and attorney's fees. Harrington v. Vandalia-Butler Board of Education, 418 F.Supp. 603 (S.D.Ohio 1976). On appeal to this Court, the factual finding of discrimination was sustained. However, we reversed the judgment on the grounds that Title VII does not authorize compensatory damages and that the finding of discrimination, standing alone, did not support an award of attorney's fees. Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir. 1978), cert. denied, 441 U.S. 932, 99 S.Ct. 2058, 60 L.Ed.2d 660 (1979).

In 1978, while Harrington's appeal was pending in this court, the Supreme Court decided Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). That decision overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), insofar as the latter held that municipalities are not "persons" subject to liability under 42 U.S.C. § 1983. Immediately after Monell was decided, Harrington brought this action against the Board of Education, school principal Ralph Clay, and school superintendent Blutcher P. Gibson, alleging employment discrimination and seeking relief under § 1983.

The defendant Board of Education moved for summary judgment on the ground that the plaintiff's claim was barred by the doctrine of res judicata. On June 7, 1979, the District Court granted this motion, holding that the plaintiff had ample opportunity during the previous litigation to raise a claim for relief based on the alleged violation of § 1983.

On June 20, 1979, counsel for defendants Clay and Gibson sent the trial judge a letter which requested clarification of the judgment previously entered. The letter asserted that the individual defendants were "privies" to the prior litigation. The District Court responded, by letter of June 28, 1979, that the dismissal of the complaint was a dismissal as to all defendants.

Harrington's first contention on appeal is that the District Court's award of summary judgment in favor of the individual defendants must be reversed because she was not given the notice required by Rule 56(c) of the Federal Rules of Civil Procedure. ¹ She argues that even if Clay and Gibson's June 20 letter to the court is deemed a motion for summary judgment, the eight-day interval between the "motion" and the court's letter "granting" that motion was insufficient notice under Rule 56. ² She also claims that the Board's motion cannot constitute sufficient notice of the individual defendants' request for summary judgment.

It is permissible in this circuit for a District Court to enter a summary judgment sua sponte. Kistner v. Califano, 579 F.2d 1004, 1006 (6th Cir. 1978). See generally, Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387, 390-91 (5th Cir. 1980). However, the Court must still "afford the party against whom summary judgment will be entered advance notice as required by Rule 56 and an adequate opportunity to show why summary judgment should not be granted." Kistner v. Califano, supra, at 1006.

We hold that the District Court erred in failing to comply with the Rule 56 requirements when it granted summary judgment in favor of Clay and Gibson. Even if the June 20 letter constituted a motion for summary judgment, the court's reply only eight days later deprived appellant of an adequate opportunity to respond. Clay and Gibson argue that appellant was placed on notice of their request for summary judgment by the combination of their answer to the complaint and the Board's motion for summary judgment. This argument is without merit. The individual defendants' answer and the Board's motion may bear on the issue of prejudice, discussed below; they cannot, however, constitute notice that Clay and Gibson sought summary judgment.

A District Court's failure to comply with the ten-day requirement of Rule 56(c) is subject to the harmless error rule. Township of Benton v. County of Berrien, 570 F.2d 114 (6th Cir. 1978). "(I)t is not reversible error for a district court to grant summary judgment before expiration of the 10 day period if the non-moving party can demonstrate no prejudice." Hoopes v. Equifax, Inc., 611 F.2d 134 (6th Cir. 1979). The recent cases in this Circuit reveal this underlying principle: when the non-moving party has had an opportunity to address the court concerning a motion and fails to object to an expedited decision thereon, or when the legal issue has already been fully briefed and no factual dispute exists, that party has not been prejudiced by the court's noncompliance with Rule 56(c). See Hoopes v. Equifax, Inc., supra; Township of Benton v. County of Berrien, supra; Thacker v. Whitehead, 548 F.2d 634 (6th Cir. 1977). See also Sherrard v. Owens, 644 F.2d 542 (6th Cir. 1981).

In the present case, there was no hearing on the individual defendants' "motion" or any other opportunity for appellant either to oppose the motion or object to its expedited disposition. Nor had the legal issue already been briefed or argued. Because Clay and Gibson were not parties to the Title VII action, they are entitled to summary judgment on res judicata grounds only if they are in privity with the Board. The issue of privity, however, was neither raised by the Board's motion nor addressed in the memoranda supporting and opposing that motion. See Township of Benton v. County of Berrien, supra, at 119. We conclude that appellant was prejudiced by the District Court's failure to comply with Rule 56(c). We therefore reverse the summary judgment granted to Clay and Gibson.

Harrington next contends that the defense of res judicata may not be invoked in this case because her present claim under § 1983 could not have been raised at the time the first suit was filed. She argues that the change in the law brought about by Monell precludes the availability of the defense. We disagree.

It is undisputed that appellant's earlier Title VII action and the present § 1983 suit are based on the same discriminatory acts. When two successive suits seek recovery for the same injury, "a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit." Cemer v. Marathon Oil Company, 583 F.2d 830, 832 (6th Cir. 1978). See also Mayer v. Distel Tool & Machine Company, 556 F.2d 798 (6th Cir. 1977); Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970). This principle applies even if an intervening decision effects a change in the law which bears directly on the legal theory advanced in the second suit.

The Supreme Court addressed this question in Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). In that case, bondholders had participated in a debt readjustment proceeding, provided for by a federal statute, which resulted in a decree embodying a plan of readjustment. The Supreme Court, in a separate proceeding, subsequently declared the statute unconstitutional. The bondholders then brought a second suit to recover the original debt. The District Court ruled in their favor on the ground that the intervening Supreme Court decision rendered the earlier decree void, and the Court of Appeals affirmed. The Supreme Court reversed and directed dismissal of the complaint, stating that:

As parties, these bondholders had full opportunity to present any objections to the proceeding, not only as to its regularity, or the fairness of the proposed plan of readjustment, or the propriety of the terms of the decree, but also as to the validity of the statute under which the proceeding was brought and the plan put into effect. Apparently no question of validity was raised and the cause proceeded to decree on the assumption by all parties and the court itself that the statute was valid. There was no attempt to review the decree. If the general principles governing the defense of res judicata are applicable, these bondholders, having the opportunity to raise the question of invalidity, were not the less bound by the decree because they failed to raise it. Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195; Case v. Beauregard, 101 U.S. 688, 692, 25 L.Ed. 1004; Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 319, 325, 47 S.Ct. 600, 601, 604, 71 L.Ed. 1069; Grubb v. Public Utilities Commission, 281 U.S. 470, 479, 50 S.Ct. 374, 378, 74 L.Ed. 972.

Id. at 375, 60 S.Ct. at 319 (emphasis added.) This reasoning is particularly apposite to the present case. Section 1983 was not "unavailable" to appellant when she filed her Title VII action. She was free to challenge the validity of Monroe v. Pape to the extent that it exempted municipalities from the ambit of § 1983. Moreover, it is clear that if she had brought the § 1983 claim initially and lost it on the basis of Monroe v. Pape, she would not be entitled to reassert the § 1983 claim...