Opinion
Case No. 00-4062-RDR.
February 6, 2001.
MEMORANDUM AND ORDER
This is an employment discrimination action. Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; the Kansas Age Discrimination in Employment Act (KADEA), K.S.A. § 44-1111 et seq.; and the Kansas Act Against Discrimination (KAAD), K.S.A. § 44-1001 et seq. This case has a close relationship with another pending case, Hladky v. UCB Films, Inc., No. 98-4227-RDR. This relationship will be examined as the court considers the pending motions here. The following motions are presently before the court: (1) plaintiff's motion to consolidate; (2) defendants' motion to dismiss or for summary judgment; (3) defendants' motion for sanctions; and (4) defendants' motion to dismiss. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
BACKGROUND
This case has an extended and tortuous history. The court shall attempt to set forth that background. For many years, Dupont, Inc. and Flexel, Inc. operated a cellophane manufacturing plant in Tecumseh, Kansas. In 1996, Flexel closed the plant and terminated all of its employees. UCB Films, Inc. purchased the plant and began seeking employees in 1997. Adecco, an employment agency, acted as an agent for UCB in the hiring process by providing administrative testing and employment services. Plaintiff, who had previously worked for seventeen years at the plant, applied for the position of coating operator. On October 7, 1997, plaintiff, after undergoing several tests and interviews, received the following letter from Adecco:
Thank you for your interest in the Coating Operator position advertised for UCB Cello, Inc.
At this point, our process reveals that some of our other applicants have skills and experience that match the needs of this position more closely than your information indicated.
We would be pleased, however, to keep your resume active in our files for consideration for any future positions for which you may be qualified. In order to remain active, our office needs to hear from you at least every 30 days. If we do not hear from you, we will assume that something has changed and you are no longer looking for a new position.
Again, thank you for your interest in UCB Cello, Inc.
Following the initial refusal to hire, plaintiff sent monthly letters to Adecco indicating a continued interest in obtaining employment with UCB.
On February 2, 1998, plaintiff filed charges of discrimination against UCB Films, Inc. with the Kansas Human Rights Commission (KHRC) and the Equal Employment Opportunity Commission (EEOC). She alleged that UCB Films refused to hire her on October 7, 1997 for the position of coating operator because of her age.
On December 18, 1998, plaintiff filed a complaint in this court against UCB Films, Inc. She alleged that UCB Films refused to hire her for the position of coating operator at its Tecumseh, Kansas facility because of her age and/or sex in violation of the ADEA, Title VII, the KADEA, and KAAD. This case was designated as No. 98-4227.
On December 23, 1998, plaintiff sought to amend her KHRC charge to include a claim of sex discrimination. The agency refused to amend the previously closed charge.
On March 15, 1999, defendant UCB Films filed a motion to dismiss plaintiff's sex discrimination claims brought pursuant to Title VII and the KAAD for failure to exhaust administrative remedies. On July 22, 1999, plaintiff filed a motion to amend. She sought to add allegations that (1) she sought "any job" at the Tecumseh plant; and (2) UCB Films had retaliated against her for filing the February charge of discrimination by continuing to refuse to hire her.
On August 25, 1999, the court granted defendant's motion to dismiss plaintiff's sex discrimination claims. The court determined that plaintiff had failed to exhaust her administrative remedies on these claims. Plaintiff sought reconsideration of the court's order. This motion was subsequently denied by the court on August 4, 2000.
On September 8, 1999, plaintiff filed another charge of discrimination with the KHRC and the EEOC. In this charge, she named UCB, Inc. and UCB Films, Inc. as respondents, and alleged retaliation, age and sex discrimination because of the defendants' refusal to hire during the 300-day period preceding the charge.
On December 27, 1999, plaintiff filed a second motion to amend her complaint. She sought to add ICB, Inc. as a defendant. Although the motion did not mention adding a claim for sex discrimination, the proposed second amended complaint included claims of sex discrimination pursuant to Title VII and the KAAD.
On March 30, 2000, the EEOC issued a right to sue letter concerning the charge filed by the plaintiff on September 8, 1999.
Plaintiff filed the instant case on April 27, 2000. In her complaint, she alleges that she has been denied employment by UCB, Inc. and UCB Films, Inc. because of her sex and/or gender and/or in retaliation for her previous administrative charges of discrimination and her lawsuit in violation of Title VII, ADEA, KAAD, and KADEA. She also sought on April 27, 2000 to consolidate this case with Case No. 98-4227-RDR.
On August 7, 2000, plaintiff's motions to amend were denied as untimely. The magistrate also found in the alternative that certain aspects of the motions should be denied as futile.
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
The court shall initially turn to defendant UCB's motion to dismiss or, in the alternative, for summary judgment. In this motion, the defendant raises three arguments. First, UCB contends that plaintiff has failed to state a claim upon which relief can be granted under the KAAD and the KADEA because it is not an "employer" within the meaning of those statutes. Second, UCB argues that plaintiff has failed to state a claim because she has failed to allege that UCB was her employer and/or that she ever sought work with it. Finally, UCB asserts that plaintiff's Title VII claims must be dismissed for lack of subject matter jurisdiction because plaintiff failed to exhaust her administrative remedies. In its reply, UCB admits that its final argument is now moot.
A brief review of the facts applicable to this motion are necessary prior to reaching the "employer" arguments made by UCB. As noted previously in this opinion, plaintiff sought employment with UCB Films, Inc. in Tecumseh, Kansas in 1997. She was denied employment on October 7, 1997. Thereafter, she continued to submit applications for employment with UCB Films, Inc. To date, she has not been hired.
Plaintiff acknowledges that she never sought employment with UCB, Inc. Rather, plaintiff's sole argument is that UCB, Inc. is an appropriate defendant because UCB, Inc. and its subsidiary, UCB Films, Inc., constitute a single integrated enterprise.
A review of the materials before the court fails to show that UCB, Inc. is entitled to dismissal or summary judgment on either of the remaining arguments. We note that much of the discussion concerning this issue by UCB, Inc. involves matters that have occurred in plaintiff's companion case against UCB Films, Inc. Although the court has some question about the need for UCB, Inc. as a defendant, we are not persuaded that dismissal or summary judgment is mandated by this record. UCB, Inc. may file another motion for summary judgment with appropriate documentation if it desires.
MOTION TO DISMISS
The defendants, relying on the doctrine of res judicata, contend that the instant action is barred and should be dismissed. They argue that the denial of the motions to amend in Case No. 98-4227 operates like a judgment on the merits for res judicata purposes.
The principles of res judicata, or claim preclusion, have been succinctly stated by the Tenth Circuit as follows:
Res judicata, or claim preclusion, precludes a party or its privies from relitigating issues that were or could have been raised in an earlier action, provided that the earlier action proceeded to a final judgment on the merits. To apply the doctrine of res judicata, three elements must exist: (1) a judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.
King v. Union Oil Co. of California, 117 F.3d 443, 445 (10th Cir. 1997) (citations omitted).
The actual application of res judicata here is problematic because the first action, Case No. 98-4227, has not proceeded to a final judgment. The defendants have addressed this lacking element by contending that the denial of the motions to amend operates like a judgment on the merit for claim preclusion purposes. However, in all of the cases cited by the defendants, res judicata or claim preclusion was applied because the first case, where the motion to amend had been denied, had reached a final judgment on the merits. See Parkins v. Patterson, 215 F.3d 1337, 2000 WL 639704 (10th Cir. 2000); Walton v. Eaton Corp., 563 F.2d 66 (3rd Cir. 1977); Sendi v. NCR Comten, Inc., 624 F. Supp. 1205 (E.D.Pa. 1986). The defendants have failed to cite any case to the court where claim preclusion was applied when the first action was still pending, and the court has failed to discover any such precedent.
Parkins, the Tenth Circuit unpublished case cited by defendants, is distinguishable on several grounds. First, as explained previously, the first action in Parkins, where the motion to amend had been denied, had ended with a judgment on the merits. Second, even if it had remained pending, the motion to amend there had been denied on the merits. The motion to amend to add a party had been denied as futile because the new party was entitled to qualified immunity. Accordingly, we do not read Parkins as broadly as the defendants. In sum, the court does not find that res judicata bars the instant action because (1) the first action has not ended with a judgment on the merits; and (2) the motion to amend was not denied on the merits.
This decision does not, however, resolve the pending motion. Although defendants may have mistakenly referred to res judicata as the applicable doctrine here, the court does find that the law supports defendants' argument in a broad sense. The defendants have continually argued that the court should not permit duplicative filings of cases or claims in a blatant attempt to circumvent the court's rulings. This principle has been recognized by the courts, although sometimes perhaps incorrectly referred to as falling under the doctrine of res judicata.
"The rule against duplicative litigation is distinct from but related to the doctrine of claim preclusion or res judicata." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2nd Cir. 2000). The two doctrines serve some of the same policies. The court's power to control duplicative lawsuits fosters judicial economy and protects parties from vexatious litigation over the same subject matter. Id. The court can exercise a variety of options in dealing with a duplicative lawsuit, including a stay of the second suit, dismissal of the second suit without prejudice, or consolidation of the two actions. Id.
The question for the court here becomes whether the claims asserted in this action are the same as those asserted in the first action. The Tenth Circuit has adopted the transactional approach from the Restatement (Second) of Judgments to determine what constitutes a single cause of action. King, 117 F.3d at 445; Clark v. Haas Group, Inc., 953 F.2d 1235, 1238 (10th Cir. 1997). Whether certain facts constitute a "transaction" or a "series of corrected transactions" is to be determined pragmatically, "giving weight to such considerations as to whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1335 (10th Cir. 1988).
Plaintiff has suggested that she seeks only to assert those claims that occurred 300 days prior to September 8, 1999, or approximately November 1998. Plaintiff argues that she was denied employment by the defendants after the filing of her first complaint based upon her age and/or sex and/or in retaliation for having filed previous complaints of discrimination. The defendants suggest that plaintiff has only been refused employment once. They argue that plaintiff's efforts to continually seek employment at the Tecumseh plant do not constitute repeated violations of plaintiff's civil rights necessitating the filing of a new lawsuit. Given the facts as presented to the court thus far and in viewing those facts in the light most favorable to the plaintiff, the court is convinced that plaintiff is entitled to bring in this case those claims that occurred after the filing of the first complaint. Curtis, 226 F.3d at 139. Plaintiff has no continuing obligation to file amendments to the complaint concerning subsequent events. Plaintiff can bring a later suit on those later-arising claims. The denial of a motion to amend in a case does not bar the assertion of those claims in a second action where the claims that were the subject of the motion to amend arose after the filing of the complaint in the first action. Id. at 139-40; Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1429 (7th Cir. 1993); Integrated Technologies, Ltd. v. Biochem Immunosystems, Inc., 2 F. Supp.2d 97, 101 (D.Mass. 1998). An exception to this rule lies where the denial of the motion to amend constitutes an adjudication on the merits. See Curtis, 226 F.3d at 139; Integrated Technologies, Ltd., 2 F. Supp.2d at 101-02.
Here, the denial of the motion to amend was not based on the merits, but rather on the procedural ground of untimeliness. Accordingly, plaintiff is not prevented from asserting any claims that arose after the filing of the complaint in the first action. See, e.g., Lewis v. Hove, 53 F.3d 338, 1995 WL 251140 at ** 1 (9th Cir. 1995) (claims of employment discrimination for refusal to hire in 1987 and 1988 brought in earlier actions do not bar subsequent action for employment discrimination for refusal to hire in 1989 because defendant's conduct does not involve same transactional nucleus of facts). The court believes that the dismissal of any claims asserted here that arose prior to the filing of the first complaint is appropriate. All of those claims could have been heard had plaintiff timely raised them, but she did not. The preclusion of those claims furthers the interests of judicial economy and prevents the plaintiff from circumventing the rulings of this court. Since the parties have not directly addressed the issues of what claims are precluded by these guidelines, the court shall leave them for another day. These matters can be discussed with the magistrate and brought to this court if the parties are unable to reach a resolution under the aforementioned guidelines.
MOTION FOR SANCTIONS
The defendants argue that the court should impose sanctions against the plaintiff for the filing of this lawsuit. The defendants argue that sanctions are appropriate because plaintiff has made abusive filings, and these tactics have caused them thousands of dollars.
With the aforementioned ruling on the defendants' motion to dismiss, the court shall deny this motion. The court is not pleased with the handling of this case by either side. The court would hope that in the future both sides would make a concerted effort to handle this litigation in an expeditious manner.
MOTION TO CONSOLIDATE
Plaintiff seeks to consolidate this case with Case. No. 98-4227. The court agrees that consolidation is appropriate. Accordingly, the court shall consolidate this case with Case No. 98-4227 for all further proceedings.
IT IS THEREFORE ORDERED that defendant's motion to dismiss or, in the alternative, for summary judgment (Doc. # 8) be hereby denied.
IT IS FURTHER ORDERED that defendants' motion to dismiss (Doc. # 30) be hereby granted in part and denied in part. All claims that arose prior to the filing of the complaint in Case No. 98-4227 shall be dismissed. A determination of what claims are included in this dismissal will be determined at a later date.
IT IS FURTHER ORDERED that defendants' motion for sanctions (Doc. # 14) be hereby denied.
IT IS FURTHER ORDERED that plaintiff's motion to consolidate (Doc. # 3) be hereby granted. This case shall be consolidated with Case No. 98-4227 for all further proceedings.
IT IS SO ORDERED.