Trujillo v. State of Colo., 79-1435

• Decision Date: 28 May 1981
• Docket Number: No. 79-1435,79-1435
• Citation: 649 F.2d 823
• Parties: 25 Fair Empl.Prac.Cas. 1397, 26 Empl. Prac. Dec. P 31,878 Jose G. TRUJILLO, Plaintiff-Appellant, v. The STATE OF COLORADO; The State Board of Community Colleges and Occupational Study; Denver Area Council for Community College; and The Community College of Denver, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 823

649 F.2d 823

25 Fair Empl.Prac.Cas. 1397,

26 Empl. Prac. Dec. P 31,878

Jose G. TRUJILLO, Plaintiff-Appellant, v. The STATE OF COLORADO; The State Board of Community Colleges and Occupational Study; Denver Area Council for Community College; and The Community College of Denver, Defendants-Appellees.

No. 79-1435.

United States Court of Appeals Tenth Circuit.

Argued Sept. 16, 1980.

Decided May 28, 1981.

Sander N. Karp of Karp & Goldstein, Denver, Colo., for plaintiff-appellant.

Thomas V. Holland, Sp. Asst. Atty. Gen., Denver, Colo., for defendants-appellees.

Before SETH, Chief Judge, LOGAN, Circuit Judge, and BOHANON, District Judge ^*.

LOGAN, Circuit Judge.

Jose G. Trujillo appeals a district court order dismissing his action for declaratory relief, injunctive relief, and damages which was brought under the Thirteenth and Fourteenth Amendments and 42 U.S.C. §§ 1981 and 1983. The principal issues on appeal are (1) whether the dismissal of a Title VII action previously brought by Trujillo against some of the defendants bars the instant suit under the doctrine of res judicata, and (2) whether Trujillo's acceptance of benefits under a conciliation agreement between defendant Community College of Denver and the Department of Health, Education, and Welfare Office of Civil Rights (HEW-OCR) bars the present action.

Trujillo, a Spanish surnamed citizen of the United States, was hired by defendant Community College of Denver (the college) in June 1973 to work in its veterans affairs program. In November 1973, Trujillo filed a charge of employment discrimination against the college with the Equal Employment Opportunity Commission (EEOC), alleging that the college had reduced his salary and had refused to grant him a raise because of his national origin. In an amended charge filed in December 1976, Trujillo alleged the college rejected him for employment in four positions applied for in 1976 most recently the position of assistant coordinator of veterans affairs because he was a Spanish surnamed American and in retaliation for his filing of the original charge. In May 1977, having received no notification of final determination from the EEOC, Trujillo filed a complaint with HEW-OCR pursuant to Exec. Order No. 11,246, 30 Fed.Reg. 12,319 (1965), reprinted in (1965) U.S.Code Cong. & Ad.News 4416, as amended by Exec.Order No. 11,478, 34 Fed.Reg. 12,985, reprinted in (1969) U.S.Code Cong. & Ad.News 2899-900, alleging essentially the same acts of discrimination set forth in his EEOC complaint, including the reduction of wages in 1973 and a discriminatory appointment of an Anglo to the position of assistant coordinator of veterans affairs. Shortly thereafter the EEOC issued a letter of determination, finding no evidence of retaliation or of discrimination with respect to wages or hiring practices; a right to sue letter was issued in June 1977.

In September 1977, Trujillo brought an action in federal court under Title VII, 42 U.S.C. § 2000e-5(f), alleging that the college refused to rehire him after his termination in June 1976 solely on the basis of his national origin. On December 30, 1977, the court dismissed Trujillo's complaint, principally for failure to include proper parties, with express leave to amend. When Trujillo did not amend his complaint it was finally dismissed on January 31, 1978, without an express statement of whether the dismissal was on the merits.

On March 15, 1978, HEW-OCR issued a letter finding that, by refusing to hire Trujillo for the position of assistant coordinator of veterans affairs, the college had discriminated against him because of his national origin; the letter expressly stated that Trujillo's other complaints of discrimination could not be substantiated. HEW-OCR negotiated a conciliation agreement with the college dated May 15, 1978, in which the college agreed to hire Trujillo as assistant coordinator of veterans affairs and to award him retroactive seniority and fringe benefits. Trujillo accepted employment in the position four days later.

Trujillo filed the present action in February 1979, alleging deprivation of rights secured by the Thirteenth and Fourteenth Amendments and 42 U.S.C. §§ 1981 and 1983. The district court granted summary judgment, relying both upon res judicata and Trujillo's acceptance of benefits as the exclusive beneficiary of the conciliation agreement.

I

The trial court ruled that because Trujillo alleged no new substantial facts in the present action he was not entitled to raise theories of liability that should have and could have been raised in the prior Title VII proceeding.

A judgment on the merits in a prior suit is required to bar a second suit based on the same cause of action under the doctrine of res judicata. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5, 99 S.Ct. 645, 649 n.5, 58 L.Ed.2d 552 (1979). The doctrine of res judicata does not apply in this case; there was no judgment on the merits of Trujillo's claim in the earlier action. The first dismissal of Trujillo's 1977 action was with express leave to amend. The final dismissal after Trujillo's failure to amend was not an adjudication on the merits; it was rather a dismissal for failure to join necessary parties. Fed.R.Civ.P. 41(b) states that involuntary dismissals are considered to be on the merits, unless the court specifies otherwise, except dismissals for lack of jurisdiction, improper venue, or for failure to join a party needed for just adjudication.

A case factually close is Mann v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 488 F.2d 75, 76 (5th Cir. 1973). There the district court dismissed the plaintiff's original complaint, with leave to amend within ten days, for want of allegations establishing diversity jurisdiction. The action was subsequently dismissed for failure to obey the court's order. Thereafter a second action was brought by Mann against Merrill Lynch on the same claims and the trial court ruled it was barred by the doctrine of res judicata. The Fifth Circuit reversed, holding the trial court's dismissal of the first action following Mann's failure to amend was not an adjudication on the merits but "merely (made) final the earlier dismissal, with leave to amend, for want of necessary jurisdictional allegations." Id. at 76.

We believe Mann correctly articulates the flaw in defendants' present argument:

"Had the District Judge intended what he wrote literally that the action was being dismissed because the March order had been 'disobeyed' he would have been guilty of an abuse of his Rule 41(b) discretion to dismiss. Dismissal of a case for disobedience of a court order is an exceedingly harsh sanction which should be imposed only in extreme cases, and then only after exploration of lesser sanctions Failure to amend a complaint after it has been dismissed with leave to amend is not such an extreme case of disobedience, if it is disobedience at all.

"Since the original action was dismissed basically because requisite jurisdiction allegations were missing, and not because Mann disobeyed the Court, that dismissal does not operate as an adjudication upon the merits."

Id.

We similarly conclude that Trujillo's Title VII action was dismissed for failure to join proper parties and not for disobedience of a court order. The dismissal, therefore, did not constitute an adjudication on the merits and did not render that action res judicata to Trujillo's present suit.

II

We next consider whether Trujillo's acceptance of substantial benefits under the conciliation agreement between the college and HEW-OCR forecloses the instant suit. While Trujillo is not a party to the agreement and claims not to have...