Opinion
3:01-CV-2595-M.
February 1, 2002.
MEMORANDUM ORDER AND OPINION
Currently before the Court is Defendants' Motion to Dismiss, filed December 28, 2001. After considering the Motion and the applicable law, the Court GRANTS the Motion in part and DENIES it in part for the following reasons:
FACTUAL BACKGROUND
Plaintiff Rufus Johnson ("Johnson") filed suit in state court on October 21, 1999, alleging claims of race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 against Defendant Dallas Area Rapid Transit ("DART"). In May 2000, Johnson's suit was dismissed for want of prosecution. He then filed a Motion to Reinstate, which was granted on August 14, 2000. The case was subsequently removed to federal court on November 27, 2000. In an Order of Dismissal, entered September 5, 2001, this Court dismissed, with prejudice to refiling, Johnson's claims against DART for failure to exercise due diligence in effectuating timely service.
Specifically, the Court stated that:
Defendant has shown that service is untimely. Plaintiff must now justify the thirteen month delay (ten before reinstatement and three thereafter). See Murray v. San Jacinth Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). Plaintiff filed no response to this Motion and provides no evidence justifying or explaining his lack of diligence. As a result, the date of service on Defendant does not relate back to the date of filing. As the service date, November 3, 2000, falls outside of the required date of filing, October 25, 1999, by almost thirteen months, the action is untimely.
Order of Dismissal at 3.
On November 16, 2001, Plaintiffs Johnson and Cedric Davis ("Davis") filed suit against DART and Juan Rodriguez ("Rodriguez"), a supervisor at DART, alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and violations of their rights to freedom of speech and equal protection under 42 U.S.C. § 1983. Defendants removed to federal court on December 7, 2001. They now seek to dismiss, claiming: (1) Plaintiffs fail to state a claim under Title VII because they have not properly pled that all the prerequisites to filing suit have been met or have occurred, (2) Plaintiffs cannot state a claim under § 1983 as their exclusive remedy is under Title VII, and (3) Plaintiffs' claims are barred by res judicata. Plaintiffs filed no response.
STANDARD OF REVIEW
The purpose of the motion to dismiss under FED. R. CIV. P. 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief, not to determine the facts or merit of the case. When reviewing the sufficiency of a plaintiff's complaint, or in this case Original Petition ("Petition"), the issue is not whether he will ultimately prevail or is likely to prevail, but whether he is entitled to offer evidence to support the claims upon which he sues. The Court must thus presume all factual allegations in the Petition to be true and resolve any ambiguities or doubts regarding the sufficiency of the claims in favor of the Plaintiffs. "However, `the [Petition] must contain either direct allegations on every material point necessary to sustain a recovery or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.'" Moreover, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."
Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1982), cert. denied, 476 U.S. 1159 (1986).
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1571 (1988).
Fernandez-Montez v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (citation omitted).
Fernandez-Montez, 987 F.2d at 284.
ANALYSIS
A. Johnson's Claims are Barred by the Doctrine of Res Judicata
Defendants argue that the doctrine of res judicata bars Plaintiffs from bringing the claims asserted in this action. The preclusive effect of a prior federal court judgment is controlled by the doctrine of res judicata or claim preclusion. Res judicata bars litigation of any issue connected with a cause of action or defense that, in the use of diligence, a party might have tried or actually did try. The Fifth Circuit's test for determining whether a claim is barred by the doctrine is clear:
The rules of res judicata encompass two separate but linked preclusive doctrines: (1) true res judicata or claim preclusion, and (2) collateral estoppel or issue preclusion. Kaspar Wire Works, Inc. v. Leco Eng'g Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978). This case concerns the application of res judicata.
Ellis v. AMEX Life Ins., Co., 211 F.3d 935, 938 (5th Cir. 2000).
For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases.
Nilsen v. City of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983) (citation omitted).
This Court dismissed Johnson's Title VII race discrimination and retaliation claims against DART, with prejudice, in Civil Action No. 3:00-CV-2575-M, on September 5, 2001. Plaintiff Johnson and DART are the same parties, this Court is one of competent jurisdiction, and the first action concluded with a final judgment on the merits. Further, utilizing the transactional approach of the Restatement (Second) of Judgments, which this Court is bound by the Fifth Circuit to apply, the Court determines that the instant action against DART and Rodriguez arises from the same nucleus of operative facts as the previously dismissed action. As stated by the Fifth Circuit, the question is not what relief is requested or theory is asserted, but is instead:
While Plaintiffs filed no response, the Court could anticipate an argument that res judicata is inapplicable because a new theory, 42 U.S.C. § 1983, was added, a new defendant, Rodriguez, was included, and the previous action did not constitute a final judgment on the merits. Each argument fails. Res judicata precludes litigation of claims and theories that either have been litigated or could have been raised in an earlier suit. Southmark Corp. v. Coopers Lybrand, 163 F.3d 925, 933 (5th Cir.), cert. denied, 527 U.S. 1004 (1999). Res judicata bars claims by parties or their privies. Montana v. United States, 440 U.S. 147, 153 (1978). Thus, Plaintiffs' attempt to name an additional defendant, a supervisor at DART, to avoid the applicability of the doctrine of res judicata is unsuccessful because Rodriguez is in privity with DART. See Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1289 (5th Cir. 1989) (employer-employee relationship). Finally, the Court dismissed, with prejudice, the previous case for failure to effectuate timely service. In doing so, it expressly stated that because the Plaintiff filed no response "justifying or explaining his lack of diligence . . . the date of service on Defendant d[id] not relate back to the date of filing . . . [and the service date] f[ell] outside of the required date of filing, October 25, 1999, by almost thirteen month." Because the dismissal related to a limitations' issue under Title VII, this constituted a decision on the merits. Ellis, 211 F.3d at 937 (actions brought subsequent to a dismissal of a case on limitations' grounds are barred by res judicata); Bierman v. Tampa Elec. Co., 604 F.2d 929, 931 (5th Cir. 1979) (dismissal for failure to prosecute precluded subsequent action even though the order did not specify whether dismissal was with or without prejudice where plaintiff neither sought reinstatement nor appealed the dismissal as an abuse of discretion).
Ellis, 211 F.3d at 938; In re Intelogic Trace, Inc., 200 F.3d 382, 386 n. 3 (5th Cir. 2000).
[w]hether [the] plaintiff bases the two actions on the same nucleus of operative facts. The rule is that res judicata `bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication, . . . not merely those that were adjudicated.'
In re Howe, 913 F.2d 1138, 1144 (5th Cir. 1990) (quoting Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th Cir. 1983) (en banc)).
The essence of Johnson's present suit is that he has been discriminated against because of his race and retaliated against because of his protected conduct. The Petition contains a verbatim recital of the same facts and claims as alleged in the previously dismissed action. With identical predicates for the claims in each case, the transactional approach is irrefutably satisfied; the overlap is simply too significant. Judicial resources will be conserved and litigants protected from multiple lawsuits by the application of res judicata to Johnson's claims.
B. Plaintiff Davis Did Not Plead Jurisdiction Allegations
Defendants argue that Plaintiffs' claims are barred because they failed to properly plead the jurisdictional requirements of 42 U.S.C. § 2000e-5(f)(1).
42 U.S.C. § 2000e-5(f)(1) requires that if the Equal Employment Opportunity Commission (the "EEOC") dismisses a charge, or if, within 180 days after a charge is filed, it has not filed a civil action, it "shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge."
In this case, Plaintiffs allege that on July 21, 1999, the EEOC mailed right to sue letters to Johnson for both of his EEOC complaints and that he filed his initial suit against DART within the requisite time period. That pleading is satisfactory, but Johnson's claims are precluded, as discussed above.
In contrast, the only jurisdictional allegation regarding Davis's exhaustion of administrative requirements is found in ¶ 3 of Plaintiffs' Petition, which states that "Plaintiff Davis previously filed complaints with the EEO office of DART." This pleading is insufficient to satisfy the jurisdictional requirements of 42 U.S.C. § 2000e-5(f)(1). The Court cannot, and will not, assume that Davis filed a charge with the EEOC, received a right to sue letter, and filed suit within the statutory time period. Where there is no indication that a plaintiff has exhausted his administrative remedies, there is no cognizable cause of action under Title VII. C. The Convergence Between Title VII and § 1983
National Ass'n of Gov't Employees v. City Public Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1279 (5th Cir. 1994); Hockaday v. Texas Dept. of Criminal Justice, 914 F. Supp. 1439, 1445 (S.D. Tex. 1996).
Plaintiffs brought claims against Defendants pursuant to both Title VII and 42 U.S.C. § 1983. The same factual underpinnings give rise to Plaintiffs' Title VII and § 1983 claims. Plaintiffs allege they were refused promotions and treated differently because of their race, and retaliated against because they filed complaints of violations of Title VII and § 1983. Johnson's claims are barred by the doctrine of res judicata. Defendants argue that Davis's § 1983 claim should also be dismissed because Title VII is his exclusive remedy.
Section 1983 provides that any person who, under color of state law, deprives another of "any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ." 42 U.S.C. § 1983 (West 1994).
The intersection of remedies under Title VII and § 1983 has been the subject of analysis by a number of Fifth Circuit panels. In Jackson v. City of Atlanta, the plaintiff sued the city, the city manager, and several council members, individually, under both Title VII and § 1983, based on the same allegedly discriminatory acts. The Fifth Circuit dismissed the plaintiff's § 1983 claim, emphasizing that the plaintiff's exclusive remedy was Title VII. Defendants argue that Jackson is dispositive here because Davis's § 1983 claims arises out of the same alleged racial discrimination forming the basis of his Title VII failure to promote, disparate treatment, and retaliation claims.
73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818 (1996).
Defendants overstate the law on this point. In Southard v. Texas Bd. of Criminal Justice, the Fifth Circuit noted Jackson's apparent inconsistency with an earlier panel opinion, Johnston v. Harris Cty. Flood Control Dist., in that the Johnston court found the defendant's conduct to violate both Title VII and the plaintiff's constitutional right to be free to testify without retaliation. In doing so, it concluded that "[b]ecause the predicate for [plaintiff's] § 1983 claim was a right independent of the right Title VII creates, [he] was entitled to pursue remedies under both statutes."
114 F.3d 539, 549 (5th Cir. 1997).
869 F.2d 1565, 1576 (5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990).
Id.
The Southard court clarified that even if a plaintiff alleges the same conduct for both Title VII and § 1983 claims, she may seek redress under both statutes, as long as the "conduct violates both Title VII and a separate constitutional or statutory right."
Southard, 114 F.3d at 549.
In Southard, female correctional officers brought suit against the Texas Department of Criminal Justice, the Department's former director, and the Department's captain under both Title VII and § 1983. Although the same sexual harassment and discrimination facts gave rise to the plaintiffs' § 1983 and Title VII claims, the § 1983 claim was allowed to stand. The Court cited Johnston with approval:
Although Title VII supplements and overlaps § 1983, it remains an exclusive remedy when a state or local employer violates only Title VII. When, however, unlawful employment practices encroach, not only on rights created by Title VII, but also on rights that are independent of Title VII, Title VII ceases to be exclusive.
Id at 549 (quoting Johnston, 869 F.2d at 1576).
The Court finds itself restrained by Johnston and Southard, and holds that Davis may assert causes of action under both Title VII and § 1983 based upon the same set of alleged discriminatory facts.
CONCLUSION
It cannot be said, as a matter of law, that Davis's exclusive remedy is Title VII. However, Davis must file, on or before February 15, 2002, an Amended Complaint setting out, precisely, facts supporting his claims, including the jurisdictional requirements to bringing a Title VII claim. If he does not do so, his claims will be dismissed with prejudice.
Defendants' Motion to Dismiss Johnson's claims is GRANTED.