Opinion
CIVIL ACTION VERSUS NO. 98-559 SECTION "I" (2)
September 8, 2000
ORDER AND REASONS
Plaintiff, Sandra Jones-Sims, brought this action against her former employer, the Housing Authority of New Orleans ("HANO"), alleging that HANO's termination of her employment in August 1997 violated Title VII because it was in retaliation for her previous filing of discrimination charges with the Equal Employment Opportunity Commission ("EEOC"). She also asserts a breach of contract claim under state law. Complaint and Amended Complaint, Record Doc. Nos. 1, 25, 29.
Trial is scheduled to begin with a jury on September 11, 2000. HANO received leave to file an untimely motion for summary judgment and to file an amended exhibit, consisting of the certified record of prior proceedings before the Louisiana Civil Service Commission. Record Doc. Nos. 40, 44, 47. HANO's summary judgment motion is supported by some certified and some uncertified exhibits. HANO argues that plaintiff's claims are barred by res judicata and/or collateral estoppel. Jones-Sims filed a timely memorandum in opposition, supported by her own unsworn exhibits. Record Doc. No. 45.
Fed.R.Evid. 56(e) requires that all exhibits supporting or opposing a summary judgment motion be sworn or certified. The Court has not considered any of plaintiff's exhibits and has not considered those of defendant's exhibits that are not certified because they are immaterial to the instant motion. HANO has provided the Court with true copies of the Louisiana Civil Service Commission proceedings, Defendant's Amended Exh. B, and the Louisiana First Circuit Court of Appeal opinion. Defendant's Exh. E. These are competent summary judgment evidence and are the only exhibits relevant or necessary to determine defendant's motion on res judicata and/or collateral estoppel grounds.
Having considered the complaint as amended, the record, the written submissions of the parties, the certified exhibits, and the applicable law, and for the following reasons, IT IS ORDERED that HANO's motion is GRANTED IN PART AND DENIED IN PART, as follows.
I. FACTUAL BACKGROUND
Solely for purposes of the pending motion, the following facts are undisputed. Jones-Sims, a black woman, was hired by HANO in 1989. After HANO terminated her employment during her probationary employment period, she filed a race discrimination complaint with the EEOC and subsequently filed a Title VII lawsuit against HANO in this Court under Civil Action No. 92-2152"E". When the parties agreed to a settlement of that action, the Court entered an order of dismissal on October 13, 1992. C.A. No. 92-2152"E," Record Doc. No. 6.
Pursuant to the settlement agreement, Jones-Sims was reinstated to her job at HANO and began working there in November 1992. HANO fired her on August 14, 1997, giving as its reasons insubordination, misconduct, disruptive behavior and verbal threats towards supervisors and co-workers.
Plaintiff, who was a classified state employee, appealed her termination to the Louisiana Civil Service Commission and also filed a charge of retaliation with the EEOC. Jones-Sims argued that HANO's reasons for her termination were false and that the actual reasons were retaliation for previous EEOC complaints and for reporting allegedly illegal activities of her co-workers. Defendant's Amended Exh. B, Civil Service Commission Administrative Record ("A.R.") at 13. A hearing was held before a Civil Service Commission Referee on March 23, 1998. id. at 70-247. HANO produced witnesses who testified concerning the incidents that led to plaintiff's termination, Id. at 79-193, and Jones-Sims testified about the facts that she believed supported her allegations.Id. at 194-242. The Referee, after reviewing the documentary evidence and testimony, concluded that Jones-Sims had been guilty of insubordination, disruptive behavior and threatening and harassing her supervisors and co-workers and that HANO had good cause to terminate her employment. Id. at 40-42.
Plaintiff appealed the Civil Service Commission's decision to the Louisiana First Circuit Court of Appeal. Id. at 59. Her only assignments of error on appeal were that the Civil Service Commission had erred by failing to find that her dismissal was in retaliation for whistle-blowing activity and by drawing an improper inference from plaintiff's failure to call a witness. Id.; First Circuit opinion, Defendant's Exh. E at 4. The First Circuit reviewed the entire record, which included plaintiff's testimony concerning alleged retaliation for filing EEOC charges, and found that "the record overwhelmingly demonstrates [that] Sims was involved in verbal altercations with several co-workers" and that the Referee's conclusions were based on credibility determinations, which could only be overturned for manifest error. Id at 4, 5. The court concluded: "We have thoroughly reviewed the entire record in this matter, and, based on all the evidence, we conclude that the factual findings of the referee are amply supported by the evidence of record. . . . and establish legal cause for the disciplinary action taken." Id. at 6.
Scott v. Office of Housing Urban Affairs, 759 So.2d 1002, 1006 (La.App. 4th Cir. 2000) (citing Walters v. Department of Police, 454 So.2d 106 (La. 1984); Arceneaux v. Dominique, 365 So.2d 1330 (La. 1978)) ("An Appellate Court in reviewing a Civil Service Commission's decision applies the clearly wrong or manifest error rule in determining whether to affirm the Commission's ruling."); Id. at 1007 (citing Sanders v. Department of Health Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1981)) ("The reviewing court must give great weight to the findings of fact of the civil service referee.").
As to her breach of contract claim, Jones-Sims alleges in her amended complaint that HANO breached paragraphs 2 (dealing with dismissal of the lawsuit) and 4 (confidentiality provision) of the settlement agreement immediately after she was reinstated in 1992. Amended Complaint, Record Doc. No. 26, ¶¶ 4-5; Settlement Agreement, Plaintiff's Exh. II to her memorandum in opposition to defendant's motion for summary judgment. Specifically, plaintiff asserts that HANO breached the agreement by reinstating her as of her termination date of April 27, 1990 rather than her original hiring date of September 18, 1989; neglecting to effectuate her full entitlement to retirement benefits; transferring her to another department on May 23, 1993; and constantly mentioning the terms and basis of the suit and placing legal documents regarding the settlement in her personnel, accounting and employee files "for any and all to review." Amended Complaint, Record Doc. No. 26, ¶¶ 4-9. In her memorandum in opposition to the instant motion, Jones-Sims states that HANO breached the agreement by "performing personnel transactions opposite to that of the executed contract;" by putting the incorrect hiring date on her retirement benefit authorization form, which lessened her benefits by three years; and by reinstating her effective April 27, 1990 rather than September 18, 1989. Record Doc. No. 45, at 3, 4.
II. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit. Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II. Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986)). A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex Corp., 477 U.S. at 321-23). Facts that are not material or necessary to the case will not preclude summary judgment. Gibson v. Rich, 44 F.3d 274, 277 n. 7 (5th Cir. 1995). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex Corp., 477 U.S. at 323.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof. assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. Plaintiff's Title VII Claim Is Barred by Collateral Estoppel
Based on the prior adjudication of the termination of her employment before the Louisiana Civil Service Commission and First Circuit Court of Appeal, HANO argues that plaintiff's claims are barred from being litigated in this Court, either by res judicata (also known as claim preclusion) or collateral estoppel (also known as issue preclusion). Precedents of the United States Supreme Court and the Fifth Circuit Court of Appeals make it clear that collateral estoppel bars Jones-Sims from raising a Title VII claim in this Court.
This Court is required to afford judgments of any state court "the same full faith and credit . . . as they have by law or usage in the courts of such State." 28 U.S.C. § 1738.
Accordingly the federal courts consistently have applied res judicata and collateral estoppel to causes of action and issues decided by state courts. Under res judicata, 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 that action. Under collateral estoppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue on a different cause of action between the same parties.Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 n. 6 (1982) (citations omitted).
This Court therefore must afford the judgment of the Louisiana First Circuit Court of Appeal the same preclusive effect that the law of Louisiana would give it. Hughes v. Arveson, 924 F. Supp. 735, 737 (M.D. La. 1996) (citing Kremer, 456 U.S. at 481-82); Raju v. Rhodes, 809 F. Supp. 1229, 1235-36 n. 9 (S.D. Miss. 1992) (citing Kremer, 456 U.S. at 480-81; Schuster v. Martin, 861 F.2d 1369, 1371-73 (5th Cir. 1988)) (applying Mississippi law of collateral estoppel to Mississippi state court judgment).
Louisiana law determines the collateral estoppel effects of that judgment as follows: "A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment." La. Rev. Stat. § 13:4231(3) (emphasis added); see also Restatement (Second) of Judgments § 27 (1982) ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.").
The elements of a Title VII retaliation claim are as follows. "Title VII imposes liability for unlawful retaliation where (1) the employee engaged in activity protected by Title VII, (2) the employer took adverse employment action against the employee, and (3) a causal connection exists between that protected activity and the adverse employment action. The ultimate determination is whether, `but for' the protected conduct, the employer would not have engaged in the adverse employment action." Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th Cir. 1998), cert. denied, 119 S.Ct. 798 (1999); accord Burger v. Central Apt. Mgmt. Inc., 168 F.3d 875, 878 (5th Cir. 1999).
The familiar Title VII burden-shifting analysis applies to a retaliation claim. Plaintiff has the initial burden of proving a prima facie case by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If a prima facie case is present,
the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. . . . [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a mere pretext for discrimination.Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quotation and citation omitted); accord Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir. 1998). This standard, originally articulated in the context of hiring decisions, also governs a claim of retaliation.Whatley v. Metropolitan Atlanta Rapid Transit Auth., 632 F.2d 1325, 1327-28 (5th Cir. 1980). Once the employer offers a legitimate, nondiscriminatory reason that explains the adverse employment action, the plaintiff must offer some evidence from which the factfinder may infer that retaliation was the real motive. Swanson v. General Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997).
As to Plaintiff's Title VII claim of retaliation, which has already been litigated before the Louisiana Civil Service Commission and the First Circuit Court of Appeal, the Supreme Court established in Kremer that
(i) preclusive effect must be given to a state court's review of a state agency's action on a job bias claim in a later action in federal court on such a claim brought under a similar federal law such as Title VII, (ii) state administrative decisions must not be given preclusive effect in a later action in federal court on a Title VII claim, and (iii) it is settled that federal administrative decisions by the EEOC must not be given preclusive effect in a later action in federal court on a Title VII claim. After Kremer, it was clear that a litigant pursuing a job bias claim was entitled to reach either a state or federal court, and could have that claim foreclosed only after receiving a full and fair opportunity to litigate that claim in either one of those fora.Levitt v. University of Tex., 847 F.2d 221, 227 (5th Cir. 1988) ("Levitt II") (citing Kremer, 456 U.S. at 461) (emphasis in original); accord University of Tenn. v. Elliott, 478 U.S. 788, 794, 796 (1986). Kremer encompasses issue preclusion as well as claim preclusion. Levitt II, 847 F.2d at 228 (citing Hirst v. State, 770 F.2d 776 (9th Cir. 1985)). A Title VII plaintiff is entitled to receive only one de novo review of the agency's findings by a court of competent jurisdiction. Id. at 227.
The instant case is procedurally indistinguishable from Levitt II, in which the Fifth Circuit held that plaintiff's Title VII discrimination claim was barred by collateral estoppel. The plaintiff, Dr. Levitt, had been a professor at University of Texas at El Paso ("UTEP"). After he was accused of sexual harassment by some of his students, UTEP
selected a five-member tribunal of other UTEP faculty members. That tribunal held a hearing . . ., during the course of which Dr. Levitt testified under oath that certain University administrators had brought false charges against him, and that these administrators were actually motivated by bias and prejudice against Levitt because he was Jewish.
The tribunal considered Dr. Levitt's testimony and all the other evidence before it, and concluded that Dr. Levitt had indeed made improper advances toward female students enrolled in his classes on several occasions. The tribunal rejected Dr. Levitt's contention and made a unanimous finding that good cause existed for the termination of his employment.Id. at 223. Dr. Levitt sued UTEP and members of the tribunal in federal district court under 42 U.S.C. § 1983, alleging that his termination violated due process and that certain members of the tribunal were prejudiced against him. The district court entered judgment in favor of the defendants and the Fifth Circuit affirmed. Id. (citing Levitt v. University of Tex., 590 F. Supp. 902 (W.D. Tex. 1984), aff'd, 759 F.2d 1224 (5th Cir. 1985) ("Levitt I")).
Dr. Levitt then filed a second suit, Levitt II, against UTEP under Title VII. "In Levitt II, Dr. Levitt again sought review of the very same transaction, his dismissal from employment at UTEP. The particular wrong Dr. Levitt alleges in his original, unamended pro se complaint in Levitt II is that he was terminated from employment with UTEP because of bias or prejudice against him because he is Jewish." Id. at 224. The district court granted UTEP's motion to dismiss and the Fifth Circuit upheld the dismissal on grounds of collateral estoppel.
The Fifth Circuit noted that, pursuant to Kremer, the findings of the UTEP tribunal were not and could not have been given preclusive effect inLevitt I, even if plaintiff had brought a Title VII claim in that action, because the tribunal's findings had not yet been reviewed by any court. Id. at 227. However,
[t]he District Court in Levitt I proceeded to review de novo the tribunal's findings, which is all that Kremer entitles Dr. Levitt to receive in a Title VII action. In the course of that review, the Levitt I trial court examined all the evidence before the university tribunal and made its own findings of fact and conclusions of law. Levitt I at 904. In particular, the Levitt I trial court expressly stated that it had "reviewed the entire record of the testimony before the special hearing tribunal, and [found] it more than sufficient to support the conclusion that [Dr.] Levitt [had] made improper sexual advances toward female students enrolled in his classes on several occasions." Levitt I at 908. The Levitt I trial court thereby necessarily rejected Dr. Levitt's countervailing contentions made before the university tribunal. Its decision foreclosed Dr. Levitt from later relitigating two issues crucial to a Title VII claim based on his discharge from UTEP: (i) that the charges against him were not a pretext (i.e. that the real motivation for his dismissal was not bias or prejudice against him because he was Jewish), and (ii) that good cause existed to fire Dr. Levitt.Levitt II, 847 F.2d at 227 (emphasis in original). Thus,
when Levitt II was brought, the findings of the university tribunal stood in a different posture. They were then reviewed state administrative findings by virtue of the Levitt I proceedings. It was therefore possible to give them preclusive effect, if appropriate, because Dr. Levitt had already had the review to which he was entitled under Kremer.Id. (emphasis in original). The district court found that Dr. Levitt had testified under oath at the hearing that certain administrators had brought false charges of sexual impropriety against him and that these administrators were actually motivated by bias and prejudice against his Judaism. Because this was "the identical claim being asserted in the present Title VII action," the Fifth Circuit affirmed the district court's dismissal on the basis of collateral estoppel. "Once a federal court had ruled in Levitt I that the charges against Dr. Levitt were not a pretext and that he had made the offensive advances of which he was accused, Dr. Levitt's full and fair opportunity to litigate those issues was over. Those rulings made success on a subsequent Title VII claim impossible." Id. at 228.
The Fifth Circuit in Levitt II "neither approve[d] nor disapprove[d]" the district court's conclusion that
(i) the [UTEP] tribunal did not and could not have heard and determined a Title VII claim by Dr. Levitt [because it was not a state agency with jurisdiction over employment discrimination complaints generally], (ii) the District Court in Levitt I could not have heard and determined a Title VII claim by Dr. Levitt at the time Levitt I was filed because Dr. Levitt had not yet received the prerequisite right-to-sue letter, and (iii) Dr. Levitt's Title VII claim therefore was not barred by claim preclusion [res judicata] and could be brought in Levitt II.Id. at 227 n. 16.
Jones-Sims's case is in an identical posture to Levitt II. In the appeal of her termination to the Louisiana Civil Service Commission, Jones-Sims raised retaliation as an affirmative defense. She testified under oath concerning facts that led her to believe that HANO's stated reasons for terminating her employment were pretexts for retaliation for her previous EEOC complaints. A.R. at 194-242. The Civil Service Commission Referee heard the sworn testimony and reviewed the exhibits; made credibility determinations in favor of HANO's witnesses and against plaintiff's testimony; and found that HANO had good cause for its action, thus implicitly rejecting plaintiff's retaliation claim. Id. at 28-42. From the perspective of Title VII analysis, the Civil Service Commission found that HANO had legitimate reasons for firing plaintiff and that plaintiff failed to carry her burden to prove that those reasons were pretextual and that defendant's real reason was retaliation for protected activity.
Although Jones-Sims initiated the appeal of her termination to the Civil Service Commission, the burden of proof was on HANO in that proceeding to show that it had good cause for the termination. First Circuit opinion, Defendant's Exh. E, at 4 (citing Howard v. Housing Auth., 457 So.2d 834, 843 (La.App. 1st Cir. 1984), overruled in part on other grounds by Ward v. Department of Pub. Safety Corrections, 718 So.2d 1042 (La.App. 1st Cir. 1998) (en banc). Thus, plaintiff's claims of retaliation were in the nature of affirmative defenses.
The First Circuit Court of Appeal reviewed the entire record de novo and affirmed the Civil Service Commission's findings. First Circuit opinion, Defendant's Exh. E. The issue whether Jones-Sims was terminated for good cause or in retaliation for protected Title VII activity was actually litigated and its determination was essential to that judgment. Those rulings made success on a subsequent Title VII claim impossible. Therefore, Jones-Sims's full and fair opportunity to litigate those issues is over.
Although Jones-Sims now alleges that her witnesses were not called at the Civil Service Commission hearing and that her attorney appealed to the First Circuit without her permission, those contentions are irrelevant. This Court is not required to examine the factual or legal underpinnings of a state court's judgment. It is well settled "that even arguably erroneous judgments have preclusive effect if the requirements for collateral estoppel are satisfied." Recoveredge L.P. v. Pentecost, 44 F.3d 1284, 1296 (5th Cir. 1995) (citing In re Teal, 16 F.3d 619, 622 n. 6 (5th Cir. 1994) (federal court "must give res judicata effect to a prior judgment even if it would be voidable on appeal because of legal error"); Disabled Am. Veterans v. Commissioner, 942 F.2d 309, 316 (6th Cir. 1991) ("It requires more than mere belief that a case was wrongly decided to avoid the application of the collateral estoppel doctrine.");Cutler v. Haves, 818 F.2d 879, 888 (D.C. Cir. 1987) ("A valid jurisdictional judgment has preclusive effect, we note, even if erroneous."); Goss v. Goss, 722 F.2d 599, 605 (10th Cir. 1983) ("[T]he res judicata or collateral estoppel consequences of a final, unappealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong.") (quotation omitted)); see also Charpentier v. BG Wire Rope Slings. Inc., 174 B.R. 438, 440 (E.D. La. 1994) ("The court will not address the correctness of the state court's judgment . . . because regardless of the correctness of the decision, it is a final judgment in which the issues were conclusively decided; therefore, this court has no power of review over the state court's decision."); Lowe v. Rivers, 445 So.2d 105, 107 (La.App. 2d Cir. 1984) ("Matters once finally determined by a court of competent jurisdiction can never again be called into question by the parties, or their privies, notwithstanding the decree may have been erroneous and subject to certain reversal on appeal."). Jones-Sims's remedy for alleged errors in the First Circuit opinion or in her attorney's actions does not lie in a Title VII suit in this Court.
The administrative record contradicts this allegation in that it reveals that Jones-Sims signed an in forma pauperis application to proceed before the First Circuit and was sent copies of correspondence documenting that an appeal had been filed there. A.R. at 62-68.
Accordingly, HANO is entitled to summary judgment based on collateral estoppel on plaintiff's Title VII claim of retaliation.
C. Plaintiff's Title VII Claim Is Barred by Res Judicata
Alternatively, plaintiff's Title VII claim is barred by res judicata. "The doctrine of res judicata provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and serves as an absolute bar to a subsequent action involving the same claims." Gladney v. American Heritage Life Ins. Co., 80 F. Supp.2d 594, 597 (W.D. La. 1999).
Under Louisiana law, res judicata is defined as follows: "[A] valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent: . . . (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action." La. Rev. Stat. § 13:4231(2) (emphasis added). Therefore, to decide whether plaintiff's Title VII claim is barred by res judicata, the Court must determine (1) whether her claim in the present suit arises out of the same transaction or occurrence as those causes of action which were fully litigated in the prior proceedings, and (2) whether her claim in the present suit existed at the time of final judgment in those proceedings. Gladney, 80 F. Supp.2d at 597.
The phrase "transaction or occurrence" has often been interpreted by federal courts in the context of compulsory counterclaims under Fed.R.Civ.P. 13(a), and Louisiana courts have applied a similar analysis when interpreting the phrase "transaction or occurrence" in Louisiana Revised Statutes § 13:4231. Id. at 598 (citing Durkin v. Quest. Inc., 724 So.2d 868, 870-71 ((La.App. 5th Cir. 1998)). The federal Fifth Circuit uses a four-part test to determine whether a counterclaim arises out of the same transaction or occurrence as the main claim:
(1) Whether the issues of fact and law raised by the claim and counterclaim largely are the same; (2) whether res judicata would bar a subsequent suit on defendant's claim absent the compulsory counterclaim rule; (3) whether substantially the same evidence will support or refute plaintiff's claim as well as defendant's counterclaim; and (4) whether there is any logical relationship between the claim and the counterclaim. An affirmative answer to any of the four questions indicates the counterclaim is compulsory.Id. (citing Park Club. Inc. v. Resolution Trust Corp., 967 F.2d 1053, 1058 (5th Cir. 1992). Similarly, an affirmative answer to any of the four questions in the context of prior lawsuits indicates the claim is barred by res judicata.
In Jones-Sims's case, the answers to questions (1), (3) and (4) are unequivocally affirmative. The issues of fact and law raised by the instant suit are identical to those raised in the Civil Service Commission proceedings; substantially the same evidence will be used in the instant case to support or refute plaintiff's claim and defendant's defense, see Pretrial Order, Record Doc. No. 41; and there is more than a logical relationship, there is an identity, between plaintiff's Title VII claim and her affirmative defense in the prior proceeding. See id. at 598 (when issues of fact and law raised by the instant suit are identical to those in prior suit, claim is barred by res judicata); Durkin, 724 So.2d at 871 (when answers to these three questions are "yes" second suit is barred). Therefore, the retaliation cause of action in the present suit arose out of the same transaction or occurrence as those litigated in the Civil Service Commission and First Circuit proceedings.
Furthermore, because Section 13:4231 bars only those causes of action which have accrued or exist at the time of final judgment, the Court must determine whether Jones-Sims's present claim existed at the time of final judgment. Gladney, 80 F. Supp.2d at 599. Obviously, her claim of retaliation based on prior EEOC activity existed at the time of the First Circuit's judgment in 1998, as it was based on occurrences in 1997 and formed one of her affirmative defenses in the Civil Service appeal.
Thus, even though plaintiff did not raise retaliation for EEOC complaints as a specific error in her appeal to the First Circuit, her claim of retaliation arose out of the same transaction or occurrence that was the subject matter of that litigation. She had a full and fair opportunity to litigate that claim as an affirmative defense. That claim has been extinguished by the First Circuit's judgment and Louisiana law of res judicata would bar its relitigation.
In Hughes, 924 F. Supp. at 735, plaintiff was a classified state employee, who appealed the termination of her employment to the Louisiana Civil Service Commission. The Commission found that the employer had good cause to demote plaintiff and suspend her without pay from the date she was terminated until she was reinstated. She appealed to the First Circuit, which affirmed the Commission's decision. Id. at 736. Plaintiff then filed a Title VII suit, alleging that her termination was based on race discrimination. Id. The district court held that her suit was barred by res judicata, even though plaintiff had not raised her allegation of race discrimination in the prior proceedings.
The plaintiff was clearly authorized, under the State Civil Service Rules, to appeal her grievances involving alleged racial discrimination to the Commission. A review of the record reveals that the plaintiff was afforded a full and fair opportunity to litigate her claim of race discrimination before the Commission and the Louisiana state courts. . . . Whether or not the plaintiff took advantage of the procedures available to her is not determinative of the issue before the Court. The question the Court must decide is whether there were procedures available to satisfy due process requirements. The Court finds, as did the Seventh Circuit Court of Appeals in a factually similar case, that the plaintiff was afforded a full and fair opportunity to litigate her claim of race discrimination. Because there is no failure of due process, and because state law would preclude the claims stated in the federal complaint under the "same transaction or occurrence" theory, this Court holds that the section 1981 and the Title VII claims against [defendant] are barred by res judicata.Id. at 737-38 (citing Welch v. Johnson, 907 F.2d 714 (7th Cir. 1990) (plaintiff's failure to avail herself of opportunity to litigate discrimination claims before Civil Service Commission and on administrative review in Illinois state courts did not insulate her claims in federal court from effects of res judicata)).
As in Louisiana, under Illinois's law of res judicata, "1) . . . a final judgment on the merits rendered by a court of competent jurisdiction bars the same parties or privies from relitigating matters that were raised or could have been raised in the prior action. (2) As a general proposition . . . a final judgment on the merits not only settles issues that actually were litigated in the prior action but also issues that might have been raised in the prior action." Welch, 907 F.2d at 720 (quotation omitted) (emphasis added).
Accordingly, HANO is entitled to summary judgment on grounds of res judicata on plaintiff's Title VII claim.
D. Plaintiff's Breach of Contract Claim Is Not Barred
I find that plaintiff's claim that HANO breached its settlement agreement was not previously litigated before the Louisiana Civil Service Commission and First Circuit Court of Appeal. The breach of contract claim was not raised in her Civil Service Commission appeal. It was not a part of the same subject matter as her termination and was not raised in that proceeding. The question then becomes whether it could have been raised.
The Civil Service Commission is granted limited jurisdiction by the Louisiana Constitution to oversee employment of classified employees. Article X, Section 12 grants the Civil Service Commission "exclusive power and authority to hear and decide all removal and disciplinary cases." La. Const. Art. X, § 12. No permanent, classified employee may be disciplined "except for cause expressed in writing. A classified [state] employee subjected to such disciplinary action shall have the right of appeal" to the Civil Service Commission. Id. art. 10, § 8(A). The Civil Service Commission also has jurisdiction to hear claims of employment discrimination based only on political or religious beliefs, sex or race. Id. art. 10, § 8(B). Because state constitutional provisions do not grant power but are limitations upon power otherwise plenary and held by the people, these provisions are construed literally and narrowly. Louisiana Dep't of Agriculture Forestry v. Sumrall, 728 So.2d 1254, 1259 (La. 1999).
My research has located only one case that addresses the power of the Civil Service Commission to address a breach of contract claim. In Bass v. Department of Public Safety Corrections, 676 So.2d 1178, 1180 (La.App. 1st Cir. 1996), the court held that the Civil Service Commission did not have the authority to enforce a union contract between the employer and a union, of which plaintiff was a member, to give plaintiff a promotion for which she was allegedly qualified under the contract, because the Commission's only power was to consider appeals from disciplinary and discriminatory actions. Under this holding, Jones-Sims could not raise her breach of contract claim before the Civil Service Commission and the Commission did not have the authority to consider it, even if she had tried to raise it in that proceeding. Thus, res judicata does not apply to bar her breach of contract claim.
In addition, because the claim was not and could not have been raised previously in the Civil Service Commission proceedings and subsequent appeal, none of the issues relevant to plaintiff's breach of contract claim were actually litigated or determined in that proceeding. Therefore, collateral estoppel also does not apply.
E. The Court Will Exercise Supplemental Jurisdiction over Plaintiff's State Law Claim
Plaintiff's federal claim has been dismissed, leaving only her state law breach of contract claim. The Court has supplemental jurisdiction over this claim but must determine whether to retain that jurisdiction.
In making this decision, the Court must consider both the statutory provisions of 28 U.S.C. § 1367 (c) and the balance of the relevant factors of judicial economy, convenience, fairness and comity. Batiste v. Island Records. Inc., 179 F.3d 217, 227 (5th Cir. 1999) (citingCarnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51 (1988); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). "Although we have stated that our `general rule' is to decline to exercise jurisdiction over pendent state law claims when all federal claims are dismissed or otherwise eliminated from a case prior to trial, this rule is neither mandatory nor absolute." Id. (citations omitted).
In the instant case, the balance of the relevant factors weighs in favor of exercising supplemental jurisdiction. First, Jones-Sims's state law claim does not involve any novel or complex issues of law. Essentially she asserts a garden variety breach of contract claim, which is not novel or complex and which this Court routinely addresses in cases based on diversity jurisdiction. While the question of the Civil Service Commission's authority to handle her breach of contract claim is somewhat novel for this Court, its resolution is not difficult in light of Louisiana case law. "The absence of any difficult state-law questions . . . weighs heavily toward our conclusion that the district court [should] . . . retain jurisdiction over the remaining claims." Batiste, 179 F.3d at 227.
The other factors point toward a conclusion to exercise supplemental jurisdiction. Comity favors dismissing the claim and letting the state court handle it because of the State's interest in adjudicating the rights of a classified civil service employee. However, the factors of judicial economy, convenience and fairness incline toward retaining jurisdiction. This case has been pending since February 1998. The Court permitted HANO to file its motion for summary judgment only six business days before trial. Discovery is complete and the parties are ready to go to trial. They have briefed the issues of this case. The Court has devoted many hours to reviewing their memoranda, the attached exhibits and the record in this case; researching the legal issues involved; and reaching the decisions herein. Batiste, 179 F.3d at 227-28. This Court therefore has "substantial familiarity with the merits of the case."Parker Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 587 (5th Cir. 1992); accord Batiste, 179 F.3d at 228 ("district court was intimately familiar with the Batistes' claims"). This Court's decisions on Jones-Sims's state law claim will dispose of her claims and put an end to litigation that has already spanned two courts and more than two and one-half years in this Court alone.
"After considering and weighing all the factors present in this case, and relying especially on [my] conclusion that . . . [this] court [is] intimately familiar with [plaintiff's] claims and the absence of any difficult state-law issue in the remaining claims, [I] thus conclude that the district court" should maintain jurisdiction over Jones-Sims's state law claim. Id.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED IN PART and that plaintiff's Title VII claim is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that defendant's motion is DENIED IN PART as to plaintiff's breach of contract claim.
Trial will commence as scheduled with a jury on September 11, 2000 at 8:30 a.m. on plaintiff's remaining state law claim.