Opinion
CIVIL ACTION NO. 00-T-543-N
February 12, 2003
Gary E. Atchison, Montgomery, AL, for Plaintiff, Terri E. Brewer
Alice Ann Byrne, Montgomery, AL, for Defendant James Dupree, Jr.
Alice Ann Byrne, Montgomery, AL, for Wayne Booker
ORDER
Plaintiff Terri E. Brewer filed this action against defendants James Dupree, Jr., and Wayne Booker, in their individual capacities, raising claims of gender discrimination in employment under the fourteenth amendment to the United States Constitution as enforced by 42 U.S.C.A. § 1983. Jurisdiction over Brewer's claims is proper under 28 U.S.C.A. §§ 1331 and 1343. The matter is currently before the court on Dupree and Booker's motion for summary judgment. For the reasons that follow, Dupree and Booker's motion will be granted in part and denied in part.
I. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Once the party seeking summary judgment has informed the court of the basis for the motion, the burden shifts to the nonmoving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993). In making a determination, the court must view all the evidence and any factual inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). The court now presents the factual background in the light most favorable to Brewer.
II. BACKGROUND
Brewer worked as a senior psychologist at the Alabama Department of Youth Services (DYS) from 1988 to 1996. Brewer's DYS supervisor was Booker; Booker, in turn, worked under Dupree, the DYS director. On August 30, 1996, Brewer tendered her resignation, effective September 20. On September 3, Booker "gleefully" accepted Brewer's resignation. Brewer then tried to change the date of her resignation by requesting leave until December 13, at which point her resignation would become effective. Booker signed a written request to change the date of her resignation.
In the meantime, on September 7, 1996, Brewer received a letter at home from Dupree accepting her resignation. On September 9, Dupree's office telephoned Brewer and informed her that Dupree had overruled Booker's acceptance of Brewer's request for leave prior to her resignation. Brewer then attempted to revoke her resignation, but Dupree denied that request. Brewer left her DYS position in good standing on September 20.
On November 20, 1996, Brewer re-applied for her former position as senior psychologist. She was placed on the State of Alabama's re-employment register for the senior-psychologist position; she was ranked number one on this register, and, according to her, remained on the register for all times material to this action.
DYS never re-hired Brewer. Instead, in November 1996, it entered into a contract with Bradford Health Services to provide a psychologist to perform Brewer's former duties. Bradford sent a male psychologist, Tazewell Jones. In February 1997, DYS provisionally appointed Jones to the senior-psychologist position (Brewer's former position), and later, in 1997, appointed Jones senior psychologist through the merit system. Jones resigned in February 1998. DYS then hired Paul Charles Shaw, a male, for the senior-psychologist position. Shaw began work in May 1998.
Dupree and Booker filed a motion to dismiss, asserting that Brewer's claims are barred by the statute of limitations. This court then ordered that the motion to dismiss be treated as a motion for summary judgment. Brewer subsequently amended her complaint to assert a continuing violation of her rights. In response, Dupree and Booker filed another dismissal motion restating their statute-of-limitations defense and also asserting that Brewer's claims were barred by res judicata and collateral estoppel.
III. DISCUSSION A. Res Judicata
Dupree and Booker contend that the doctrines of res judicata and collateral estoppel bar Brewer from bringing some or all of her claims and issues in this lawsuit. They argue that all of the claims arise from the same nucleus of operative fact as those that were addressed in a previous lawsuit in this court against the State of Alabama and Youth Services: Brewer v. Alabama, 111 F. Supp.2d 1197 (M.D. Ala. 2000) ("Brewer I").
Before discussing the requirements of res judicata and collateral estoppel, it will be helpful to review the court's holding in Brewer I. In that earlier case, Brewer alleged that Alabama, "primarily through Dupree," engaged in discrimination and retaliation. 111 F. Supp. at 1201. She asserted that Dupree was a "sexist" who made inappropriate comments to her. Id. She further complained about Booker's "threatening comments." Id. The court's opinion discussed in detail all the events Brewer alleges in this case up to January 1997, when DYS hired a male to fill Brewer's old position. Id. at 1202. Brewer's complaint specifically referred to DYS's second hiring of a replacement in June 1998, although this was not discussed in the subsequent briefs, affidavits, or the court's opinion. The relevant counts in Brewer I were her claims of sex discrimination, failure-to-rehire, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17. Id. at 1203. The court found that all of Brewer's claims were barred by the statute of limitations.Id.
In Brewer I, Brewer also asserted claims under the Americans with Disabilities Act, 28 U.S.C.A. §§ 12101-12117. The Brewer I court found these claims time-barred as well.
Having discussed what was covered in Brewer I, this court now turn to the questions of res judicata. Res judicata, often called claim preclusion, has four prerequisites: (1) there is a final judgment on the merits of the first action; (2) the first decision is rendered by a court of competent jurisdiction; (3) the parties to both actions, or those in privity with them, are identical; and (4) the causes of action in both suits are identical. Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240, 1244 (11th Cir. 1991).
The first two factors are not problematic here: there was a final judgment on the merits, Hall v. Burger King Corp., 912 F. Supp. 1509, 1527 n. 42 (S.D. Fla. 1995) (Kehoe, J.) (a dismissal based on a statute-of-limitations ground is a dismissal on the merits), and the decision in Brewer I was decided by a court of competent jurisdiction.
The next res-judicata prerequisite is whether the causes of action in both suits are identical. Here the inquiry is not only whether both cases advance precisely the same legal theory, but also whether the legal theories and claims arise out of "the same nucleus of operative fact."NAACP v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990). Res judicata "acts as a bar not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same operative nucleus of fact." Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356 (11th Cir. 1998) (internal punctuation and citations omitted). A court, therefore, examines "the factual issues that must be resolved in the second suit and compare[s] them with the issues explored in the first case." Id. at 1357.
It is "black-letter law 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." Nilsen v. City of Moss Point, Mississippi, 701 F.2d 556, 560 (5th Cir. 1983). It is "equally settled that one who has a choice of more than one remedy for a given wrong . . . may not assert them serially, in successive actions, but must advance all at once on pain of bar." Id.
As stated above, all the facts concerning Brewer's initial departure from DYS and the subsequent hiring of the first male psychologist were considered in Brewer I. It makes no difference that, in Brewer I, Brewer based on her claims on Title VII, and, in the instant case, she relies on the equal protection clause as enforced through § 1983; the legal and factual bases of the two cases are the same. In addition, Brewer pled the issue of Shaw's hiring. Brewer's attempt to relitigate these facts is a classic instance of claims "arising under a common nucleus of fact." Brewer is seeking a second bite of the apple — seeking to relitigate the same facts under a different theory — but she "may not" assert her claims "serially, in successive actions." City of Moss Point, 701 F.2d at 560.
The final res-judicata requirement is that the parties to both actions, or parties in privity with them, are identical. In the Eleventh Circuit, the "question of whether sufficient privity exists to warrant application of res judicata is a question of law." Hunt, 891 F.2d at 1561. The law is on Brewer's side.
A government official sued in his individual or personal capacity presents a different case from that of an official sued in his official capacity. If the plaintiff prevails against the official in his individual capacity, the official must satisfy the judgment out of his own pocket, rather than having the government entity pay the damages.Kentucky v. Graham, 473 U.S. 159, 166-167, 105 S.Ct. 3099, 3105 (1985). Different legal theories may be necessary to prove liability in an individual-capacity case, as opposed to an official-capacity case, and different defenses are available to a defendant who is sued in his individual capacity. Id. Therefore, courts do not consider an official sued in his individual capacity as being in privity with the government.Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987); Roy v. City of Augusta, Me., 712 F.2d 1517, 1521-522 (1st Cir. 1983); see also C. Wright, A. Miller E. Cooper, Federal Practice and Procedure § 4458, at 508 (1981) ("The relationships between a government and its officials justify preclusion only as to litigation undertaken in an official capacity. Thus a judgment against a government does not bind its officials in subsequent litigation that asserts a personal liability against the officials."); 18 James Wm. Moore, Moore's Federal Practice § 131.40[3][e] at 131-148 (3d ed. 2000) ("a government official who sues or is sued in an official capacity is not in privity with himself or herself in an individual capacity for purposes of claim preclusion").
Because the parties in the instant case are not in privity with the parties in Brewer I, Brewer's current suit is not barred by res judicata.
B. Collateral Estoppell
Collateral estoppel or issue preclusion applies if three prerequisites are met: (1) the issues at stake must be identical to the ones alleged in the prior litigation; (2) the issues must have been actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that earlier action. Mike Smith Pontiac, GMC, Inc. v. Mercedes-Benz of N. Am., Inc., 32 F.3d 528, 532 (11th Cir. 1994).
As discussed above, the issues here are the same as in Brewer I: the circumstances of Brewer's departure from DYS, the failure to rehire Brewer in the fall of 1996, the replacement of Brewer with male psychologist Jones, and the later hiring of male psychologist Shaw. The issues up to and including the hiring of Jones in early 1997 were decided on the merits in Brewer I, and they were a "critical and necessary part of the judgment in that earlier action." Brewer is therefore barred from raising these issues a second time.
Although the complaint does not contain Shaw's name, it is clear that it refers to hiring of Shaw:
"19. After the Plaintiff applied for her old position, the Defendant continued to seek other applicants, and hired a male to fill the position. Then when the first replacement left in March 1998, they hired another female (sic) to fill the position in June 1998."
Complaint, filed December 2, 1998, at 4, attached to defendants' brief, filed September 5, 2000 (Doc. no. 19).
As with res judicata, Brewer may claim that the parties are not the same in the current action. The Supreme Court, however, has approved of nonmutual defensive issue preclusion. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328, 91 So. Ct. 1434 (1971); Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 328, 99 S.Ct. 645 (1979). "Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely `switching adversaries,'" and thus "defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the first action if possible."Parklane, 439 U.S. at 329-330, 99 S.Ct at 650-651 (internal punctuation and citations omitted).
Defensive use of estoppel thus prevents "repeated litigation of the same issue as long as the supply of unrelated defendants holds out."Parklane, 439 U.S. at 328, 99 S.Ct. at 650 (internal punctuation and citations omitted). Such repeated litigation would reflect "either the aura of the gaming table or a lack of discipline and disinterestedness on the part of lower courts," hardly "a worthy or wise basis for fashioning rules of procedure." Id.
While defensive use of nonmutual collateral estoppel is an accepted practice, Allen v. McCurry, 449 U.S. 90, 94-95, 101 S.Ct. 411, 415 (1980) ("the requirement of mutuality in applying collateral estoppel" is eliminated), it must still conform to the requirements of fairness. Fairness factors are, however, less of a concern where, as here, estoppel is asserted defensively. "[T]he authorities have been more willing to permit a defendant in a second suit to invoke an estoppel against a plaintiff who lost on the same claim in an earlier suit." Blonder-Tongue, 402 U.S. at 329-30, 91 S.Ct. at 1443.
The most significant safeguard in applying estoppel is "the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate." Blonder-Tongue, 402 U.S. at 329, 91 S.Ct. at 1443. The fairness factors outlined by the Supreme Court weigh in favor of applying estoppel to all claims not arising from the Shaw hire in 1998. Parklane, 439 U.S. at 329-331, 99 S.Ct. at 650-52. Brewer had a full and fair opportunity to litigate these issues in the prior action; her current suit offers no procedural advantages over her previous action; and she had every incentive to litigate vigorously in the first action. Thus here application of estoppel is not unfair to Brewer.
The court cannot, however, bar Brewer's claims based on the Shaw hire. As mentioned above, this incident was not discussed in the briefs or in the court's opinion in Brewer I. In determining whether an issue has been litigated for issue preclusion purposes, a federal court is "free to go beyond the judgment and may examine the pleadings and the evidence in the prior action." 18 James Wm. Moore, Moore's Federal Practice § 132.03[2][a] at 132-81 (3d ed. 2000); James Talcott Inc. v. Allahabad Bank, 444 F.2d 451, 459-60 (5th Cir.), cert. denied, 404 U.S. 840, 92 S.Ct. 280 (1971). In Brewer I, Brewer raised the Shaw hiring in her pleadings, but the neither the court nor the parties found this fact significant, and the court ruled against Brewer on all counts.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the 11th Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
There is some case law that might be read as allowing the court to bar all of Brewer's claims. See Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992) (relevant claims for res judicata purposes are those "in existence at the time the original complaint is filed or claimsactually asserted by supplemental pleadings or otherwise in the action."). Fairness requires, however, that Brewer be allowed to litigate the Shaw hire. In Brewer I, this issue was raised in the complaint but never briefed and never discussed by the court. It cannot be seen as essential to that court's determination of Brewer's case, and is not barred by collateral estoppel. See generally 18 James Wm. Moore, Moore's Federal Practice § 132.03[1] at 132-76 (3d. ed. 2000) (collateral estoppel does not apply unless the issue to be precluded was actually litigated and decided in the prior action).
Therefore, all of Brewer's claims except her Shaw-hire claim are barred by collateral estoppel.
C. Statute of Limitations
Section 6-2-38(l) of the 1975 Alabama Code states that all "actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." Section 1983 claims, such as the one asserted by Brewer here, are limited by this two-year state statute of limitations. Lufkin v. McCallum, 956 F.2d 1104, 1105 n. 2 (11th Cir.), cert. denied, 506 U.S. 917, 113 S.Ct. 326 (1992); see also Owens v. Okure, 488 U.S. 235, 250, 109 So. Ct. 573 (1989).
When a defendant pleads the statute of limitations as a bar against suit, the burden falls on the plaintiff to prove the cause of action accrued within the applicable period. Miller v. Chemstrand Corp., 331 F.2d 374 (5th Cir. 1964). As a general matter, the "statutory period for bringing a suit alleging injury due to a violation of a federal civil rights statute begins to run from the time a cause of action accrues, that is, as soon as a party has suffered cognizable injury and thus is entitled to maintain an action thereon." Beasley v. Alabama State University, 966 F. Supp. 1117, 1128 (M.D. Ala. 1997) (Thompson, J.).
Brewer claims that, after she re-applied for her job, defendants refused to re-hire her on the basis of her gender. The initial date of defendants' "relevant discriminatory act" was determined in Brewer I to be September 10, 1996. 111 F. Supp.2d at 1205. A claim based on this incident would be barred by the two-year Alabama statute of limitations. Brewer argues that her Shaw-hiring claim is not time-barred because it is a new event that occurred less than two years before she filed her lawsuit. She maintains that the failure to re-hire her at the time of Shaw's hiring represents a new violation and therefore marks the real point at which the statute of limitations should begin to run as to this claim.
The Eleventh Circuit Court of Appeals has held that a request for reinstatement after an alleged discriminatory discharge does not give rise to a separate claim for discrimination unless it constitutes a "new and discrete act of discrimination in the refusal to rehire itself."Hargett v. Valley Federal Sav. Bank, 60 F.3d 754, 763 n. 10 (11th Cir. 1995). Since a "simple request for reinstatement seeks to redress" the original, allegedly wrongful, termination, Burnam v. Amoco Container Co., 755 F.2d 893, 894 (11th Cir. 1985) (quotation marks omitted), Brewer's simple request for reinstatement would simply seek to redress the original wrong — that is, the refusal to re-hire her in 1996.
When this court first examined these issues in Brewer I, it found that, with regard to subsequent DYS hirings, "there were no new facts existing at the time plaintiff was denied reemployment which would render the denial a new and discrete discriminatory act." 111 F. Supp.2d at 1207. The Brewer I court found that, "by reapplying, [plaintiff] did not . . . trigger a new limitations period." Id. The court continues to find this reasoning persuasive. The Jones hire occurred just months after Brewer left DYS. Brewer reapplied at DYS on November 20, 1996, and Jones was hired in January 1997. Id. at 1202. These events are closely connected in time and involved the same parties. The court therefore reaffirms its earlier finding that the hiring of Jones was not a new and discrete act, and that all claims resulting from the Jones hire are barred by the two-year statute of limitations.
The question of Shaw's hiring is more difficult, and the opinion inBrewer I did not discuss it. The circumstances of Shaw's hiring are simple: the senior-psychologist position Brewer applied for become vacant again in 1998, and again Brewer was denied the position. This act by Dupree and Booker, who hired Shaw, took place over a year after the Jones hire. At the summary-judgment stage, the court takes all evidence in favor of the non-moving party, so the court assumes that Brewer made a good-faith application for the position when Shaw was hired. Given the time lapse between the hiring of Jones and the hiring of Shaw, this would constitute a "new and discrete act" for purposes of the statute of limitations at summary judgment. Unlike the Jones hire, which occurred close on the heels of Brewer's resignation, the Shaw hiring was separate in time and involved a new set of circumstances (such as determining what new qualifications, if any, Brewer attained during the intervening period, and comparing her to a new applicant, Shaw).
There is enough that is potentially different about the circumstances of Shaw's hire to allow this claim to stand trial. Brewer filed the current lawsuit less than two years after discovering that Shaw was hired, and therefore the Shaw hire is not barred by the statute of limitations.
Accordingly, for the above reasons, it is ORDERED that the motion for summary judgment and motion to dismiss, filed by defendants James Dupree, Jr., and Wayne Booker on May 19 and August 24, 2000 (doc. nos. 5 15), are granted as to all plaintiff Terri E. Brewer's claims except her claim arising out of the hiring of Paul Charles Shaw.