Rivers v. Barberton Bd. of Educ., 96-4404

• Citation: 143 F.3d 1029
• Decision Date: 11 May 1998
• Docket Number: No. 96-4404,96-4404
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1545, 73 Empl. Prac. Dec. P 45,377 Gwendolyn M. RIVERS, Plaintiff-Appellant, v. BARBERTON BOARD OF EDUCATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1029

143 F.3d 1029

76 Fair Empl.Prac.Cas. (BNA) 1545,

73 Empl. Prac. Dec. P 45,377

Gwendolyn M. RIVERS, Plaintiff-Appellant, v. BARBERTON BOARD OF EDUCATION, Defendant-Appellee.

No. 96-4404.

United States Court of Appeals Sixth Circuit.

Argued Jan. 27, 1998.

Decided May 11, 1998.

Steven L. Howland (argued and briefed), Hardiman, Buchanan, Howland & Trivers, Cleveland, OH, for Plaintiff-Appellant.

David K. Smith (argued and briefed), Means, Bichimer, Burkholder & Baker, Cleveland, OH, Glenn D. Waggoner (briefed), Pepple & Waggoner, Cleveland, OH, for Defendant-Appellee.

Before: WELLFORD, RYAN, and SILER, Circuit Judges.

OPINION

RYAN, Circuit Judge.

The plaintiff, Gwendolyn M. Rivers, appeals from the district court's summary judgment dismissal, based on the doctrine of res judicata, of her case in which she alleged, among other things, race discrimination in violation of 42 U.S.C. §§ 2000e-2000e-17. We affirm the judgment of the district court.

I.

Rivers filed a charge of discrimination against the defendant, Barberton Board of Education (Barberton), first with the Ohio Civil Rights Commission (OCRC), and then, on June 24, 1993, with the Equal Employment Opportunity Commission (EEOC). Pursuant to a work-sharing agreement, the EEOC refrained from processing the charge while it was pending with the OCRC. On February 24, 1994, Rivers initiated a civil action against Barberton in federal district court (Rivers I). On March 2, 1995, she filed an amended complaint in Rivers I in which she alleged that Barberton discriminated against her based on race and age, in violation of 42 U.S.C. §§ 1981, 1983, 1988, 2000e-2000e-17 (Title VII); the Civil Rights Act of 1991; the Fourth, Thirteenth, and Fourteenth Amendments; and various Ohio laws. When Rivers filed this amended complaint, the EEOC had not yet issued to her a right-to-sue letter.

The Honorable Sam H. Bell granted Barberton's motion for summary judgment on all federal causes of action and declined to retain jurisdiction on a remaining state-law claim, thus dismissing the Rivers I case. In dismissing the Title VII claim, the district court drew upon sister-circuit decisions for its conclusion that it had jurisdiction to consider the claim despite the absence of a right-to-sue letter. The court observed that, although receipt of the right-to-sue letter is not a jurisdictional prerequisite, it is a condition precedent that can be equitably modified only on proper occasion. The court concluded, however, that as to the Title VII race-discrimination claim, there was no compelling reason in this instance to equitably modify the requirement for the letter. With respect to the age-discrimination claim, however, Judge Bell granted summary judgment, not for want of a right-to-sue letter, but because Rivers failed to plead age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-633a, or under any other statute that supported an age-discrimination claim.

Rather than seek reconsideration or appellate review of the grant of summary judgment on all claims, Rivers immediately requested the OCRC to close its file so the EEOC could accept jurisdiction. She simultaneously requested a right-to-sue letter from the EEOC. Rivers received her race-discrimination right-to-sue letter on May 20, 1996, and her age-discrimination right-to-sue letter on June 5, 1996.

Rivers then filed this action (Rivers II) on June 12, 1996. The operative facts in the Rivers II complaint mirrored those in the dismissed Rivers I amended complaint. Likewise, both complaints alleged racial discrimination in violation of Title VII. The Rivers II complaint additionally invoked the ADEA for her age-discrimination allegation. Barberton moved for summary judgment based upon res judicata. The Honorable David D. Dowd, Jr., to whom Rivers II was assigned, granted the motion "[u]nder well-established principles of res judicata." Rivers now appeals this grant of summary judgment with respect to the dismissed Title VII claims only.

II.

"This court reviews the dismissal of a case on claim ... preclusion grounds de novo." Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir.1995) (citing Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir.1994)), cert. denied, 517 U.S. 1220, 116 S.Ct. 1848, 134 L.Ed.2d 949 (1996). We have set out the principles governing claim preclusion as follows:

The doctrine of res judicata, or claim preclusion, provides that 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 a prior action. As stated by this court, res judicata has four elements: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.

Id. at 560 (internal quotation marks and citations omitted).

III.

Clearly Rivers I and Rivers II had an identity of parties and causes of action with respect to the alleged race discrimination, thus satisfying the second and fourth elements of the four-prong test. The dispute here concerns the first and third prongs. While both parties seem to agree that the right-to-sue letter is a condition precedent to bringing suit, rather than a jurisdictional requirement, Rivers asserts that a dismissal for failure to meet a condition precedent should be considered, for claim preclusion purposes, to be a jurisdictional dismissal, and, therefore, not a dismissal on the merits. She additionally argues that, lacking the right-to-sue letter, she could not have litigated the Title VII matter in Rivers I in any event.

Before addressing Rivers's assertions, however, we first direct our attention to the parties' apparent agreement that the right-to-sue letter is a condition precedent to bringing a Title VII action. As the Rivers I court acknowledged, this circuit has adroitly sidestepped this issue in the past. However, it appears that the time might now be right to join our sister circuits that have already concluded that a right-to-sue letter is merely a condition precedent, and not a jurisdictional requirement, to bringing a Title VII action.

A precursor of this conclusion is found in the Supreme Court's announcement in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. at 393, 102 S.Ct. at 1132. Since that decision, some circuits have gone so far as to proclaim that "all Title VII procedural requirements to suit are henceforth to be viewed as conditions precedent to suit rather than as jurisdictional requirements." Fouche v. Jekyll Island--State Park Authority, 713 F.2d 1518, 1525 (11th Cir.1983).

Taking a more measured approach, this circuit merely recognized, without passing on the issue, that "[s]ubsequent to Zipes, ... every circuit presented with the issue has decided that the receipt of a right-to-sue letter prior to the filing of a Title VII action is not a jurisdictional prerequisite, but rather a precondition subject to equitable tolling and waiver." Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1487 (6th Cir.1989) (citing cases). Since then, other circuits have joined the six circuits cited in Puckett in specifically finding the right-to-sue letter to be a modifiable condition precedent. See, e.g., Forehand v. Florida State Hosp. at Chattahoochee, 89 F.3d 1562, 1567-69 (11th Cir.1996); McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st Cir.1996). More recently, this circuit again expressed tacit approval of the notion that Zipes supports the conclusion that the right-to-sue letter is nonjurisdictional. See Gilday v. Mecosta County, 124 F.3d 760, 762 (6th Cir.1997). We think it is now time to say so explicitly.

As the Seventh Circuit found, there is " 'no rational basis for treating [differently] those [Title VII action preconditions, i.e., the requirements of 42 U.S.C. § 2000e-5 (1976) ] that have not been considered from those that implicitly or explicitly have been held not to be jurisdictional.' " Liberles v. Cook County, 709 F.2d 1122, 1125 (7th Cir.1983) (quoting Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1009 (11th Cir.1982) (footnote omitted)). Indeed, the Zipes Court's reasoning, that the filing requirement is a precondition because it is listed in a separate section of Title VII than the section that grants jurisdiction to the district courts, is equally applicable to all of the requirements listed in section 2000e-5(f)(1). See McKinnon, 83 F.3d at 505. Furthermore, it is reasonable to conclude that, "[b]ecause a timely filing with the EEOC necessarily precedes the return of a right-to-sue [letter] from the EEOC, such [a letter] must also be [a condition precedent that is] curable." Jones v. American State Bank, 857 F.2d 494, 499 (8th Cir.1988).

Accordingly, we hold that the right-to-sue letter is a condition precedent and not a jurisdictional requirement. Rivers does not contend otherwise. Neither does she question the propriety of the Rivers I court's summary judgment dismissal of her Title VII claim. Rather, she disputes the preclusive effect of this dismissal.

Rivers urges that a dismissal for failure to satisfy a condition precedent should not be considered an adjudication on the merits for claim preclusion purposes. She notes that at least two other circuits have adopted this position. See Harris v. Amoco Prod. Co., 768 F.2d 669, 679 n. 18 (5th Cir.1985); Pinkard v. Pullman-Standard, 678 F.2d 1211, 1218 (5th Cir. Unit B 1982); Stebbins v. Nationwide Mut. Ins. Co., 528 F.2d 934, 937 (...