PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 97-8170
_______________
D. C. Docket No. 1:96-CV-0317-MHS
SANDRA L. PLEMING,
Plaintiff-Appellant,
versus
UNIVERSAL-RUNDLE CORPORATION,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(June 8, 1998)
Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and
COHILL*, Senior District Judge.
*
Honorable Maurice B. Cohill, Senior U.S. District Judge for
the Western District of Pennsylvania, sitting by designation.
BIRCH, Circuit Judge:
This appeal requires us to address whether the doctrines of res
judicata or collateral estoppel bar a cause of action for employment
discrimination and retaliation. In the course of prior litigation, the
parties briefed and discussed the incidents giving rise to the
complaint in the present case but never amended the pleadings in
the first litigation to include a claim based on the incidents. The
plaintiff-appellant maintains that, because our precedents did not
require her to amend her complaint to include claims based on
incidents of alleged discrimination discovered after she filed her first
lawsuit, res judicata and collateral estoppel cannot now prevent her
from bringing the discovered claims in a second lawsuit. The district
court found that the plaintiff-appellant had asserted the subsequent
incidents before the first court and, therefore, held that res judicata
or, alternatively, collateral estoppel barred the suit. We disagree
and REVERSE.
2
BACKGROUND
In the summer of 1992, plaintiff-appellant, Sandra L. Pleming,
suffered a back injury while she worked as a laborer for defendant-
appellee, Universal-Rundle Corporation (“Universal-Rundle”). In
July 1993, she applied for a clerical position that would have been
less physically demanding but would have paid her less than what
she earned as a laborer. Although apparently qualified for the
position, Pleming did not receive the job. In August 1994, Pleming
filed an employment discrimination lawsuit in federal district court
alleging that Universal-Rundle had discriminated against her based
on her race and disability. Pleming's complaint relied on Title VII,
42 U.S.C. § 2000e, et. seq., and
42 U.S.C. § 1981. Although
Pleming stated a prima facie case of discrimination, Universal-
Rundle explained that it had not hired Pleming for the clerical
position because the company had a policy against allowing
employees to transfer to lower paying jobs.
3
In October 1994, during the course of the litigation, two
additional clerical positions of the type Pleming sought opened at
Universal-Rundle. Pleming did not apply for either of these positions
and the company filled them with other applicants. In fact, Pleming
did not learn about these additional positions at Universal-Rundle
until May 1995, during the course of discovery. Although Pleming
never amended her complaint to include allegations of discrimination
arising out of these incidents, she described the incidents in her
briefs before the magistrate judge and the district court. Pleming
sought to use these incidents to prove that Universal-Rundle's policy
was a pretext for discrimination and thus avoid summary judgment
on her claims arising out of the July 1993 hiring decision. A
magistrate judge found that Pleming's claims of racial discrimination
were sufficient to withstand Universal-Rundle's motion for summary
judgment. The magistrate judge's report and recommendation (the
“report”) included a reference to the two clerical positions that
Universal-Rundle had filled after Pleming filed her complaint. The
4
district court, however, granted summary judgment in favor of
Universal-Rundle, finding that Pleming had failed to prove that the
company's non-discriminatory explanation was pretext, and a panel
of this court affirmed without opinion. See Pleming v. Universal-
Rundle Corp., No. 1:94-cv-2004-RLV, slip. op. (N.D. Ga. Nov. 22,
1995), aff'd,
100 F.3d 971 (11th Cir. 1996) (“Pleming I”).
On January 30, 1996, after the district court entered summary
judgment in favor of Universal-Rundle in Pleming I, Pleming filed
another complaint in federal district court alleging discrimination and
retaliation against her in the company's decision to hire other
applicants for the October 1994 clerical openings. Pleming based
her claims in this second lawsuit on
42 U.S.C. § 1981. Universal-
Rundle moved to dismiss the complaint on the ground that either res
judicata or collateral estoppel barred the suit because Pleming had
already litigated and lost on her claims arising out of the October
1994 hiring decisions. The district court agreed and dismissed
Pleming's complaint.
5
DISCUSSION
We subject the district court's decision to dismiss a complaint
pursuant to Federal Rule of Civil Procedure 12(b) to de novo review.
See In re Johannessen,
76 F.3d 347, 349 (11th Cir. 1996). Although
the parties are in essential agreement about the material facts of the
case, we assume the allegations of the plaintiff's complaint to be true
and construe the facts in the light most favorable to the plaintiff.
Id.
at 350.
I. Res Judicata
First, we address the district court's holding that the principles
of res judicata barred Pleming's second lawsuit. As the district court
correctly observed, the doctrine of res judicata provides repose by
preventing the relitigation of claims that have already been fully
litigated and decided. Res judicata, or claim preclusion, bars a
subsequent claim when a court of competent jurisdiction entered a
final judgment on the merits of the same cause of action in a prior
6
lawsuit between the same parties. See I.A. Durbin, Inc. v. Jefferson
Nat'l Bank,
793 F.2d 1541, 1549 (11th Cir. 1986).1 Pleming
concedes that, if her second suit involves the same cause of action
decided in Pleming I, res judicata bars this litigation because her
case satisfies all the other elements of the doctrine.
The determination of whether a litigant has asserted the same
cause of action in two proceedings depends upon whether the
primary right and duty are the same in both cases. See Manning v.
City of Auburn,
953 F.2d 1355, 1358 (11th Cir. 1992). Res judicata
acts as a bar “not only to the precise legal theory presented in the
1
Neither the parties nor the district court address whether
state or federal principles of res judicata apply to the case at
bar. Our precedents on this question appear to lead in two
different directions. Compare Precision Air Parts, Inc. v. Avco
Corp.,
736 F.2d 1499, 1503 (11th Cir. 1984) (a federal court
reviewing the preclusive effect of a prior federal judgment applies
federal common law) with NAACP v. Hunt,
891 F.2d 1555, 1560 (11th
Cir. 1990) (“Federal courts apply the law of the state in which
they sit with respect to the doctrine of res judicata.”). As a
result, the district courts have found themselves in some
confusion. See e.g., Jones v. New England Life Ins. Co.,
974 F.
Supp. 1476, 1479-81 (M.D. Ga. 1996) (describing these precedents).
Since both federal and Georgia principles of res judicata require
the cause of action in the first and second lawsuit to be the same,
compare Durbin,
793 F.2d at 1549, with Waldroup v. Greene County
Hosp. Auth.,
265 Ga. 864, 866,
463 S.E.2d 5, 7 (1995), we need not
resolve the conflict to decide this appeal. We note the problem,
however, in the hope that future litigants will consider and brief
the issue.
7
previous litigation, but to all legal theories and claims arising out of
the same operative nucleus of fact.” Id. at 1358-59 (quoting NAACP
v. Hunt,
891 F.2d 1555, 1561 (11th Cir. 1990) (internal quotation
omitted)). A court, therefore, must examine the factual issues that
must be resolved in the second suit and compare them with the
issues explored in the first case. Id. at 1359.
Pleming's first lawsuit claimed that Universal-Rundle
discriminated against her when the company hired a less qualified
white employee for a specific clerical position in July 1993. Pleming
did not learn that the company had engaged in alleged further
discrimination against her by filling two subsequent administrative
openings in October 1994 without considering her, until May 1995,
during the conduct of discovery in the first lawsuit. Pleming's first
complaint, therefore, contained no mention of these subsequent
hiring decisions and Pleming did not amend her complaint to include
them.
8
In Manning, we considered a situation in which a plaintiff
elected not to participate in an employment discrimination class-
action but brought a second suit alleging employment discrimination
against the same defendant. The operative facts that gave rise to
the plaintiff's claims for discrimination had not occurred when the
class filed its claim but some of those facts occurred before the
district court dismissed the plaintiff from the class action. The
Manning plaintiff, therefore, had an opportunity to preserve her
claims in the class action by filing a supplemental pleading or by
participating in discovery in that case. See id. at 1359. We,
however, observed that Federal Rule of Civil Procedure 15(d), which
governs supplemental pleadings, makes such a pleading optional
and held that the doctrine of res judicata does not punish a plaintiff
for exercising the option not to supplement the pleadings with an
after-acquired claim. Id. at 1360. We explained that the parties
frame the scope of litigation at the time the complaint is filed and that
a judgment is only conclusive regarding the matters that the parties
9
might have litigated at that time but not regarding “new rights
acquired, pending the action which might have been, but which were
not required to be litigated.” Id. (quoting Los Angeles Branch
NAACP v. Los Angeles Unified Sch. Dist.,
750 F.2d 731, 739 (9th
Cir. 1984)) (internal quotations omitted). We then explained that:
[W]e do not believe that the res judicata
preclusion of claims that “could have been
brought” in earlier litigation includes claims
which arise after the original pleading is filed in
the earlier litigation. Instead, we believe that,
for res judicata purposes, claims that “could
have been brought” are claims in existence at
the time the original complaint is filed or claims
actually asserted by supplemental pleadings or
otherwise in the earlier action.
Id. (second emphasis added) (footnote omitted); see also
Commercial Box & Lumber Co. v. Uniroyal, Inc.,
623 F.2d 371, 374
n.2 (5th Cir. 1980) (arriving at a similar conclusion).2
The parties in this case agree that the events giving rise to
Pleming II arose well after Pleming filed and amended her complaint
2
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), this court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to October
1, 1981.
10
in the first lawsuit. The parties also agree that, given our holding in
Manning, Pleming was under no obligation to amend or supplement
her complaint and that she did not do so. Universal-Rundle,
however, points out that the Manning opinion left open the possibility
that a litigant could assert a claim by other means and contends that
Pleming actually asserted her claims arising out of the October 1994
hiring decisions in the Pleming I proceedings by including those
incidents in her briefs. Pleming admits that her briefs did refer to
these incidents to provide evidence that Universal-Rundle's
explanation for hiring someone else in July 1993 was pretextual.
The question of whether res judicata bars Pleming's claims,
therefore, turns on whether the discussion of a related but distinct
cause of action in briefs amounts to the actual assertion of that claim
in the first proceeding.3
3
Universal-Rundle also contends that the July 1993 and
October 1994 incidents do not present factually distinct causes of
action, but rather the same claim litigated on a different legal
theory. Universal-Rundle's argument that both incidents concern
the company's duty to hire Pleming in a clerical capacity is
overbroad and unpersuasive. Pleming has not attempted to
relitigate the circumstances of the July 1993 hiring decision under
a different legal theory. Instead, Pleming alleges that the
11
We addressed a similar question in Coon v. Georgia Pacific
Corp.,
829 F.2d 1563 (11th Cir. 1987), and held that a district court
had not abused its discretion by refusing to consider a plaintiff's
unpled claims even though the plaintiff had included the claims in
her briefs and discovery requests.
Id. at 1568-71. In Georgia
Pacific, the district court held that the plaintiff's references to unpled
incidents of alleged discrimination in her pretrial stipulation, in her
motions before the court, and throughout the conduct of discovery
were no substitute for the factual allegations of a complaint required
by Federal Rule of Civil Procedure 8. We affirmed the district court,
noting that although the plaintiff was free to plead her additional
claims in the litigation, she had not done so: “These claims were not
somehow 'present' within her complaint, despite her failure to allege
October 1994 incidents, which took place over a year later,
constitute independent acts of discrimination. See e.g., Mahroom
v. Hook,
563 F.2d 1369, 1377 (9th Cir. 1977) (holding that
identical allegations of discrimination in connection with a hiring
decision two years after the subject of an earlier proceeding
constituted a separate cause of action). Universal-Rundle's
reliance on ambiguous language in our predecessor court's opinions
to support the proposition that res judicata bars litigation
regarding subsequent acts that arise after the plaintiff files a
complaint in the first action but before the court enters judgment
is unpersuasive in light of our opinion in Manning.
12
them.” Id. at 1570. Of particular relevance to the case before us, the
Georgia Pacific court rejected the plaintiff's argument that the claims
were properly before the district court because she alleged they
were part of a “continuing violation.” Id. (citing cases that require a
plaintiff to plead instances of continuing violations that occur after
the initiation of an EEOC charge or similar litigation before they are
properly before the court); Jones v. Florida Power Corp.,
825 F.2d
1488, 1492-93 (11th Cir. 1987) (upholding a district court's refusal
to hear evidence on incidents of discrimination that tended to
establish a pattern of racial discrimination because the plaintiff's
complaint contained no allegations regarding either the incidents or
the pattern of discrimination); see also Wu v. Thomas,
863 F.2d
1543, 1548-49 (11th Cir. 1989) (inclusion of testimony in a prior
action that touched on the substance of second cause of action for
retaliation could not implicitly amend the complaint in the prior
action).
13
Although Manning intimated that a litigant may “otherwise”
assert a claim, without filing a supplemental pleading, the court did
not purport to suspend the Federal Rules of Civil Procedure. We
believe that these other means must conform with the rules of
procedure and would, for example, include an amendment pursuant
to Rule 15(b) or the assertion of a claim through a pretrial order
pursuant to Rule 16(e).4 Neither of these options apply to this case.
Since Universal-Rundle objected to Pleming's statements about the
October 1994 incidents in her briefs, it is clear that the parties could
not have tried the issue “by express or implied consent.” See Fed.
R. Civ. P. 15(b) (which permits a court to treat such issues as if they
had been pled in the complaint). Moreover, neither the magistrate
judge nor the district court entered a pretrial order in this case.
4
We note, however, that there is precedent in this circuit,
preceding our opinion in Manning, that holds that a plaintiff's
interjection of unpled matters into a supplementary pretrial
statement and introduction of evidence on those matters as
“background material” to distinct legal claims does not bar the
subsequent litigation of the plaintiff's independent claims arising
out of those matters. See Stevenson v. International Paper Co.,
516 F.2d 103, 111 (5th Cir. 1975). We express no opinion on
whether the result in Stevenson properly might be limited to its
facts.
14
Pleming's references to the October 1994 incidents of alleged
discrimination during the first lawsuit are similar to the references
that we have held insufficient to assert a claim before a district court.
In her response to Universal-Rundle's motion for summary
judgment, Pleming argued that the October 1994 incidents
demonstrated pretext in connection with the July 1993 hiring
decision and asserted that the incidents constituted evidence of a
“continuing violation.” Pleming also used the October 1994 incidents
in her objections to the magistrate judge's report to provide evidence
of discriminatory intent. As the cases discussed above reveal,
however, Pleming's references to the incidents in her briefs were
insufficient to put her claims of discrimination and retaliation arising
out of the October 1994 incidents before the district court pursuant
to the Federal Rules of Civil Procedure. Accordingly, these
references were insufficient to actually assert these claims in the
prior litigation as contemplated in Manning.
15
Universal-Rundle pushed for exactly this conclusion before the
magistrate judge and the district court in Pleming I when it argued
that the October 1994 incidents were beyond the scope of Pleming's
complaint and therefore not properly before the court. The company
now contends that the magistrate judge implicitly rejected its position
by including Pleming's contentions in his report. The “Background
Facts” portion of the report includes two sentences regarding the
October 1994 vacancies, but the report limits its analysis to
Pleming's claim of discrimination arising out of the company's July
1993 decision to award the clerical position to a white employee.5
Similarly, the district court's opinion, which rejected the magistrate
judge's conclusions on the employment discrimination claims and
granted Universal-Rundle's motion for summary judgment, made no
mention of the October 1994 incidents. The isolated reference in the
magistrate judge's report does not support the defendant's
5
The report states in pertinent part: “Other clerical
positions became available after July 1993. Plaintiff did not
apply for any of these positions.” R1-4, Exh.1 at 6 (citations
omitted).
16
contention that the magistrate judge and the district court actually
adjudicated an unpled and unasserted claim. At best, the report's
reference to the post-1993 openings indicates that the magistrate
judge may have considered the events as evidence of pretext but
does nothing to suggest that the magistrate judge actually rendered
a decision about whether those events constituted independent or
even continuing acts of employment discrimination. As a result, we
find that the district court erred when it decided that res judicata
barred Pleming's claims of discrimination arising out of the October
1994 incidents.
II. Collateral Estoppel
We must also address the district court's alternative holding
that collateral estoppel bars Pleming's second lawsuit. While res
judicata bars the relitigation of claims, collateral estoppel precludes
the relitigation of an issue that has already been litigated and
resolved in a prior proceeding. See Durbin,
793 F.2d at 1549. To
17
claim the benefit of collateral estoppel the party relying on the
doctrine must show that: (1) the issue at stake is identical to the one
involved in the prior proceeding; (2) the issue was actually litigated
in the prior proceeding; (3) the determination of the issue in the prior
litigation must have been “a critical and necessary part” of the
judgment in the first action; and (4) the party against whom collateral
estoppel is asserted must have had a full and fair opportunity to
litigate the issue in the prior proceeding.
Id. The district court found
that the Pleming I court, before it could have granted summary
judgment in Universal-Rundle's favor, necessarily evaluated
Pleming's claims regarding the October 1994 incidents and found no
evidence of discrimination.
Our conclusion that Pleming did not actually assert a claim for
employment discrimination arising out of the October 1994 incidents
in the first lawsuit leads us to question whether the parties actually
litigated those issues. The United States Court of Appeals for the
Seventh Circuit has explained that the actual litigation requirement
18
for the application of collateral estoppel “will usually be satisfied
merely by the designation of the question as one for trial (for
example by its being listed on the pretrial order as an issue that is to
be tried . . .), even if no evidence is introduced . . . .” Truck Ins.
Exch. v. Ashland Oil, Inc.,
951 F.2d 787, 792 (7th Cir. 1992); see
also Restatement (Second) of Judgments § 27 cmt. d (1982) (“When
an issue is properly raised, by the pleadings or otherwise, and is
submitted for determination, and is determined, the issue is actually
litigated . . . .”).6 Although it is clear that Pleming made no such
formal declaration of her intent to litigate the October 1994 incidents
during Pleming I, Universal-Rundle argues that because Pleming
offered the incidents as evidence of discriminatory intent and
pretext, Pleming actually litigated her claims for employment
discrimination arising out of those incidents.
6
Once again, we note that the parties and the district court
have failed to address whether federal or state principles of
collateral estoppel apply to this question. As we observed above,
however, both Georgia and federal law require the actual litigation
of the issue in question in the prior proceeding. Compare Durbin,
793 F.2d at 1549, with Waldroup,
265 Ga. at 867,
463 S.E.2d at 7.
19
We rejected a similar argument, however, as “completely
devoid of merit” in Wu,
863 F.2d at 1548-49. In that case, we found
that a judgment against the plaintiff on prior claims of gender
discrimination did not collaterally estop a subsequent claim for
retaliation, even though the testimony offered in the first trial
“touched on” the defendant's retaliatory actions.
Id. Similarly, we
cannot accept Universal-Rundle's contention that Pleming litigated
her claims arising out of the October 1994 incidents, including her
claims of retaliation for filing Pleming I, simply by offering the
incidents as evidence of pretext in a distinct employment decision.
This is not a case in which the plaintiff squarely presented an issue
for decision in the first litigation and failed to carry the burden of
proof; rather, “[i]t was neither framed by the pleadings as an issue
nor decided by the district judge.” Ashland Oil,
951 F.2d at 793.
We note that Pleming's present complaint alleges that
Universal-Rundle did not hire her for a clerical position in October
1994 at least in part to retaliate against her for filing the Pleming I
20
litigation. Regardless of what else Pleming may have argued in the
first lawsuit, it is clear that the subject of retaliation did not arise, and
Universal-Rundle does not contend otherwise. Moreover, to the
extent Pleming did raise the October 1994 incidents in the first
litigation, she did not “actually litigate” the question of whether those
incidents would themselves constitute employment discrimination.
Pleming sought to introduce these incidents to show that Universal-
Rundle's citation to a policy against transferring employees to lower
paying jobs was pretextual. Pleming attempted to show pretext by
proving that although Universal-Rundle knew by October 1994 that
she could not handle the physical demands of her higher paying
position and, therefore, could not demand that the company return
her to that job, the company still refused to hire her in a clerical
position. Much like we held in Wu, this tangential reference to the
events of October 1994 was an insufficient basis for district court's
conclusion that the parties had actually litigated the issue.7 Cf. Rath
7
Throughout its brief Universal-Rundle cites to a number of
cases that make the point that failure to make all the arguments
21
v. Gallup, Inc.,
51 F.3d 791, 793 (8th Cir. 1995) (a plaintiff's failure
to establish pretext in a prior litigation establishes only that the
employment decision in question was not improperly motivated and
that was the only issue that was “'actually litigated' for collateral
estoppel purposes”); United States v. Woods,
484 F.2d 127, 138
(4th Cir. 1973) (finding that a grant of acquittal on one count of a
criminal prosecution did not collaterally estop the prosecution from
offering evidence on that count to prove absence of accident on
other counts). Accordingly, we reverse the district court's alternative
holding that collateral estoppel barred Pleming's suit in this case.
CONCLUSION
possible in support of a position in the first litigation does not
preclude the application of collateral estoppel. See Zip Dee, Inc.
v. Dometic Corp.,
905 F. Supp. 535 (N.D. Ill. 1995). We find no
fault with those cases but find that they offer little assistance
in our analysis of this case. Pleming did not attempt to litigate
her independent claims of employment discrimination and retaliation
on a different legal theory in Pleming I; she simply sought to use
them as evidence to contradict Universal-Rundle's explanations
regarding the July 1993 decision.
22
Pleming asks us to reverse the district court's decision to
dismiss her complaint as barred by the doctrines of res judicata and
collateral estoppel. We conclude that the district court erred when
it found that Pleming actually asserted claims for employment
discrimination and retaliation arising out of incidents that occurred
after she filed her complaint in Pleming I. We also find that the
district court erred in its alternative holding that Pleming's references
to these incidents in her briefs in Pleming I constituted actual
litigation of those claims. Accordingly, we hold that res judicata and
collateral estoppel do not bar Pleming's complaint in this subsequent
lawsuit. We REVERSE and REMAND this case to the district court
for further proceedings consistent with this opinion.
23
