Headley v. Bacon

• Decision Date: 09 September 1987
• Docket Number: No. 86-2512NE,86-2512NE
• Citation: 828 F.2d 1272
• Parties: 51 Fair Empl.Prac.Cas. 778, 44 Empl. Prac. Dec. P 37,360 Teresa L. HEADLEY, Appellant, v. Howard BACON, Individually and in his official capacity; Bernell Schum, Individually and in his official capacity; and Deputy Chief Gary Piel, Individually and in his personal capacity, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1272

828 F.2d 1272

51 Fair Empl.Prac.Cas. 778,

44 Empl. Prac. Dec. P 37,360

Teresa L. HEADLEY, Appellant, v. Howard BACON, Individually and in his official capacity;

Bernell Schum, Individually and in his official

capacity; and Deputy Chief Gary Piel,

Individually and in his

personal capacity, Appellees.

No. 86-2512NE.

United States Court of Appeals,

Eighth Circuit.

Argued June 9, 1987.

Decided Sept. 9, 1987.

Thom K. Cope, Lincoln, Neb., for appellant.

Kenneth H. Elson, Grand Island, Neb., for appellees.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and ROSENN, ^* Senior Circuit Judge.

ROSENN, Senior Circuit Judge.

In this appeal we examine the circumstances under which defendants in a civil action may be said to be in privity for res judicata purposes with the defendant in a previous action brought by the same plaintiff on the same set of facts. Because we conclude that the interests of the defendant police force officials in the present action were not adequately congruent to those of their employer, the defendant city in the previous action, we agree with the plaintiff that privity is lacking. Therefore, even though it may have been desirable to conserve judicial resources and avoid expenses to her adversary, for the plaintiff to have asserted all her claims in a single action, the doctrine of res judicata does not bar the present action. We therefore are constrained to vacate the summary judgment entered by the district court in favor of the defendants.

I.

Teresa Headley was a police officer employed by the City of Grand Island, Nebraska (the City). Howard Bacon was the Chief of Police, Gary Piel the Deputy Chief, and Burnell Schum a lieutenant who was Headley's supervisor and training officer. Headley was the only female officer on the force when she joined in July 1979. She was subjected to sexual harassment and discrimination on the basis of her sex until her resignation in February 1984.

Headley sued the City successfully under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Secs. 2000e to 2000e-17 (1981), Headley v. City of Grand Island, No. CV83-L-760 (D.Neb. Jan. 16, 1985) (Headley I ). Schum, Bacon, and Piel were defense witnesses but not parties in that action. The district court awarded Headley equitable relief consisting of back pay, front pay, and attorney's fees. The court based its decision on its findings of several acts of sexual harassment, discrimination, retaliation, and eventual constructive discharge by Schum, Bacon, and Piel.

Headley then commenced this action for damages under 42 U.S.C. Secs. 1982, 1983, and 1985 against Schum, Bacon, and Piel, individually and in their official capacity, alleging violations of and conspiracy to violate her rights to due process and equal protection of law and free speech. The allegations in the complaint were very similar to the district court's findings in Headley I. The district court granted the defendants' motion for summary judgment, holding that Headley's claims against them should have been joined with her Title VII claim against the City, and that she was therefore precluded by the final judgment in Headley I from bringing them in a subsequent proceeding. 668 F.Supp. 1315 (D.Neb. 1986).

II.

The doctrine of res judicata bars claims if three requirements are met: (1) the prior judgment was rendered by a court of competent jurisdiction, (2) the decision was a final judgment on the merits, and (3) the same cause of action and the same parties or their privies were involved in both cases. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). The parties in the instant case agree that the first two requirements are satisfied; their disagreement on both parts of the third is the basis of this appeal.

Headley could have joined her section 1982, 1983, and 1985 claims against the individual defendants with her Title VII action against the City in Headley I. Under the Federal Rules of Civil Procedure, relief of several types may be demanded, Fed.R.Civ.P. 8(a); a party may join as many claims as he or she has against an opposing party, Fed.R.Civ.P. 18(a); and all persons may be joined as defendants in one action if, as here, "there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a). Although Headley could not have held the City liable under section 1983 solely because the individual defendants in this case had been employed as City police officers (see Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978)) nor the individual defendants under Title VII (because they were not her employers), under Rule 20(a) she could have brought her Title VII claims against the City and her section 1982, 1983, and 1985 claims against Bacon, Schum, and Piel in a single action.

That Headley could have joined the suits does not necessarily mean she was required to do so, however. The decision to bring separate actions was a tactical choice allowed by the Federal Rules of Civil Procedure; Rules 18(a) and 20(a) refer only to permissive joinder, at the party's option. ¹ Nevertheless, the doctrine of res judicata may operate for practical purposes to require joinder of claims by barring their assertion in later actions. The questions thus remain whether the claims and/or the defendants in the two actions were sufficiently distinct to avoid application of the doctrine.

A. Identity of Causes of Action

Headley contends that even if both actions were brought against the same defendants, the factual basis of the cause of action in Headley I is distinct and separate from that in the present case. Title VII and sections 1982, 1983, and 1985 have some nonoverlapping elements; nevertheless, all her claims arise out of the same incidents. The statutes simply permit different legal theories for recovery for various injuries arising out of the same wrong or series of wrongs. Where plaintiffs have brought Title VII and other Civil Rights Act claims against the same defendants in separate actions, the later claims have been barred on this basis. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Poe v. John Deere Co., 695 F.2d 1103, 1105-08 (8th Cir.1982); cf. Brown v. St. Louis Police Dept., 691 F.2d 393 (8th Cir.1982) (prior state court action barred federal Civil Rights Act claims in federal court), cert. denied, 461 U.S. 908, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983). Therefore, for res judicata purposes, the cause of action in the present case, if against the same defendant or a privy, is the same as in Headley I.

B. Identity of Parties

The doctrine of res judicata does not bar claims even arising out of the same facts against defendants who were not parties to the first action. In Migra, Poe, and Brown, supra, the defendants in the second actions had all been parties in the earlier actions; the defendants in the present case were not. An exception exists, however, for those who stand in privity to the defendants in the prior suit. In Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434 (6th Cir.1981), both the original and new defendants were sued in the second action. The Sixth Circuit affirmed the summary judgment for original defendant, but reversed the summary judgment for the new defendants because the issue of privity between them and the original defendant had not been addressed. 649 F.2d at 436-37.

In the present case the district court held ² that Bacon, Schum, and Piel were in privity with the City, because "the defendants named in both suits 'have a close relationship, bordering on near identity ...' " (quoting Robbins v. District Court of Worth County, 592 F.2d 1015, 1017 (8th Cir.1979), cert. denied, 444 U.S. 852, 100 S.Ct. 107, 62 L.Ed.2d 69 (1979)), and because it was "persuaded by the finding of the Seventh Circuit Court of Appeals that '[a] government and its officers are in privity for purposes of res judicata.' " Id. (quoting Mandarino v. Pollard, 718 F.2d 845, 850 (1983), cert. denied, 469 U.S. 830, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984)). In Robbins, the parties in both actions were held to be identical. The district court in this case did not specify any factors supporting its conclusion of "near identity." The defendants urge on appeal that privity is established because it was for their own actions that the City was found liable in Headley I.

In Mandarino, the case relied upon by the district court, the plaintiff had unsuccessfully sued a village, his former employer, on state causes of action. In the later federal action, he asserted federal Civil Rights Act claims against the village and also against the village mayor, the village manager, and several trustees of the village board. The Seventh Circuit, stating the rule quoted by the district court in the present case, held that the individual defendants were in privity with the village.

Not all government employees and officials are in privity with the government, however, just as not every employee is in privity with his or her employer. A city or village can act only through its mayor, manager, and council. Moreover, even persons in such clearly policy-making positions may not be in privity with the government. In Roy v. City of Augusta, Maine, 712 F.2d 1517 (1st Cir.1983), the plaintiff sued the city, the city's attorney, a councilman, and other individual defendants. Chief Judge Campbell writing for the court held that a previous judgment against the city and the individuals in their official capacities operated as a bar only as against the city, not as against the city's attorney or the councilman, neither of whom had been parties to the prior action, nor even against the other individual ...