Juarez-Galvan v. United Parcel Service, Inc., No. 5:2013cv04046 - Document 34 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER granting 18 Motion to Dismiss by defendant. See order for further details. Signed by U.S. District Senior Judge Sam A. Crow on 1/8/2014. (mb)
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Juarez-Galvan v. United Parcel Service, Inc. Doc. 34 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS GUSTOAVO M. JUAREZ- GALVAN, Plaint iff, v. No. 13- 4046- SAC UNI TED PARCEL SERVI CE, Defendant . MEMORANDUM AND ORDER This Tit le VI I case com es before t he court on Defendant ’s m ot ion t o dism iss or, in t he alt ernat ive, for sum m ary j udgm ent . Defendant cont ends t hat t his suit is barred by t he doct rine of claim split t ing because Plaint iff should have included in a prior lawsuit it t he claim s he m akes in t his case. That case was Gust oavo M. Juarez- Galvan v. Unit ed Parcel Service, No. 104145- WEB ( Juarez I ) . Alt ernat ively, Defendant cont ends t hat m ost of Plaint iff’s claim s are t im e- barred because t hey occurred m ore t han 300 days before Plaint iff filed his relevant adm inist rat ive charge wit h t he Kansas Hum an Right s Com m ission ( KHRC) / EEOC, and t hat t he only t im ely claim raises no inference of discrim inat ion and st at es no basis for em ployer liabilit y. Plaint iff opposes t he m ot ion, but for t he reasons st at ed below t he Court grant s it . Dockets.Justia.com M ot ion t o D ism iss St a n da r d To survive a m ot ion t o dism iss, a com plaint m ust have facial plausibilit y. To survive a m ot ion t o dism iss, a com plaint m ust cont ain sufficient fact ual m at t er, accept ed as t rue, t o “ st at e a claim for relief t hat is plausible on it s face.” I d. [ Bell At l. Corp. v. Twom bly, 550 U.S. 544, 570, 127 S.Ct . 1955, 167 L.Ed.2d 929 ( 2007) ) at 570. A claim has facial plausibilit y when t he plaint iff pleads fact ual cont ent t hat allows t he court t o draw t he reasonable inference t hat t he Defendant is liable for t he m isconduct alleged. I d. at 556. The plausibilit y st andard is not akin t o a “ probabilit y requirem ent ,” but it asks for m ore t han a sheer possibilit y t hat a Defendant has act ed unlawfully. I d. Where a com plaint pleads fact s t hat are “ m erely consist ent wit h” a Defendant 's liabilit y, it “ st ops short of t he line bet ween possibilit y and plausibilit y of ‘ent it lem ent t o relief.’ “ I d. at 557. Ashcroft v. I qbal, 556 U.S. 662, 129 S.Ct . 1937, 1949, 173 L.Ed.2d 868, 884 ( 2009) . “ Threadbare recit als of t he elem ent s of a cause of act ion, support ed by m ere conclusory st at em ent s, do not suffice.” I d. “ [ C] ourt s should look t o t he specific allegat ions in t he com plaint t o det erm ine whet her t hey plausibly support a legal claim for relief.” Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 n. 2 ( 10t h Cir. 2007) . “ While t he 12( b) ( 6) st andard does not require t hat Plaint iff est ablish a prim a facie case in [ his] com plaint , t he elem ent s of each alleged cause of act ion help t o det erm ine whet her Plaint iff has set fort h a plausible claim .” Khalik v. Unit ed Air Lines, 671 F.3d 1188, 2012 WL 364058, at * 3 ( 10t h Cir. Feb. 6, 2012) . “ The court 's funct ion on a Rule 12( b) ( 6) m ot ion is not t o w eigh pot ent ial evidence t hat t he part ies m ight present at t rial, but t o assess whet her t he plaint iff's ... com plaint alone is legally sufficient t o st at e a claim 2 for which relief m ay be grant ed.” Miller v. Glanz, 948 F.2d 1562, 1565 ( 10t h Cir. 1991) . The court accept s all well- pled fact ual allegat ions as t rue and views t hese allegat ions in t he light m ost favorable t o t he nonm oving part y. Unit ed St at es v. Sm it h, 561 F.3d 1090, 1098 ( 10t h Cir. 2009) , cert . denied, 558 U.S. 1148 ( 2010) . The court , however, is not under a dut y t o accept legal conclusions as t rue. I qbal, 556 U.S. 662, 129 S.Ct . at 1949. “ Thus, m ere ‘labels and conclusions' and ‘form ulaic recit at ion of t he elem ent s of a cause of act ion’ will not suffice.” Khalik, 2012 WL 364058, at * 2 ( 10t h Cir. Feb.6, 2012) ( quot ing Twom bly, 550 U.S. at 555) . I n evaluat ing a Rule 12( b) ( 6) m ot ion t o dism iss, t he court is lim it ed t o assessing t he legal sufficiency of t he allegat ions cont ained wit hin t he four corners of t he com plaint . Archulet a v. Wagner, 523 F.3d 1278, 1281 ( 10t h Cir. 2008) . Accordingly, t he Court disregards t he affidavit at t ached t o Plaint iff’s brief. 1 But in considering t he com plaint in it s ent iret y, t he Court also exam ines any docum ent s “ incorporat ed int o t he com plaint by reference,” Tellabs, I nc. v. Makor I ssues & Right s, Lt d., 551 U.S. 308, 322, 127 S.Ct . 2499, 168 L.Ed.2d 179 ( 2007) , and docum ent s at t ached t o t he com plaint , Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1189 ( 10t h Cir. 2012) ( quot at ions and cit at ions om it t ed) . Thus t he Court considers Plaint iff’s adm inist rat ive charge and right t o sue let t er. See Dk. 1. 1 But even had t he Court considered Plaint iff’s affidavit , t he Court ’s decision on t he issue of claim split t ing would be t he sam e. 3 Addit ionally, a court m ay t ake j udicial not ice of fact s which are a m at t er of public record, Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 ( 10t h Cir. 2006) , and of st at e court docum ent s, Pace v. Swerdlow, 519 F.3d 1067, 1072–73 ( 10t h Cir. 2008) . Accordingly, t his Court t akes j udicial not ice of t he record in Juarez I , finding t he requirem ent s of Fed.R.Evid. 201 t o be m et . See Fed.R.Evid. 201; Shut t leswort h v. Cit y of Birm ingham , Ala., 394 U.S. 147, 157 89 S.Ct . 935 ( 1969) ; St . Louis Bapt ist Tem ple, I nc. v. FDI C, 605 F.2d 1169, 1172 ( 10t h Cir. 1979) ( “ [ F] ederal court s, in appropriat e circum st ances, m ay t ake not ice of proceedings in ot her court s, bot h wit hin and wit hout t he federal j udicial syst em , if t hose proceedings have a direct relat ion t o m at t ers at issue.” ) . And t he Court does so wit hout convert ing t he m ot ion t o dism iss int o a m ot ion for sum m ary j udgm ent . See Grynberg v. Koch Gat eway Pipeline Co., 390 F.3d 1276, 1278 n. 1 ( 10t h Cir. 2004) ( fact s subj ect t o j udicial not ice m ay be considered wit hout convert ing a m ot ion t o dism iss int o a m ot ion for sum m ary j udgm ent ) ; Turner v. Cit y of Tulsa, 525 Fed.Appx. 771, 773 ( 10t h Cir. 2013) ( sam e) . Un con t e st e d Fa ct s The Court finds a short chronology of relevant event s t o be helpful. 05/ 13/ 09 – Plaint iff files his first KHRC/ EEOC charge, alleging discrim inat ion 08/ 05/ 10 – EEOC issues Plaint iff a right t o sue let t er on his first KHRC/ EEOC charge. 11/ 02/ 10 – Plaint iff files Juarez I in st at e court . 11/ 29/ 10 – Defendant rem oves Juarez I t o federal court . 11/ 03/ 11 – Plaint iff files his second KHRC/ EEOC charge, including act s occurring on Novem ber 2, 2009, Novem ber 3, 2009, June 15, 2010, and July 15, 2011. 4 11/ 04/ 11 – Judge in Juarez I conduct s a t elephone scheduling conference, grant s plaint iff’s request for addit ional t im e t o am end his Com plaint t o include ret aliat ion and host ile work environm ent claim s, so am ends scheduling order. 12/ 30/ 11 – Deadline for Plaint iff’s Mot ion t o Am end Com plaint in Juarez I . Plaint iff does not am end his com plaint t o include ret aliat ion or host ile work environm ent claim s. 04/ 16/ 12 – Pret rial Order filed in Juarez I st at ing only one claim - failure t o prom ot e. 05/ 03/ 12 – 180 days run aft er Plaint iff’s second KHRC/ EEOC charge. 10/ 02/ 13 – KHRC issues a No Probable Cause det erm inat ion and closes it s file on Plaint iff’s second KHRC charge. 10/ 10/ 12 – Sum m ary j udgm ent m ot ions becom e ripe in Juarez I . 01/ 23/ 13 – EEOC issues Plaint iff a right t o sue let t er on second KHRC/ EEOC charge. 04/ 08/ 13 – Judge grant s sum m ary j udgm ent t o Defendant in Juarez I . 04/ 23/ 13 – Plaint iff files t his case in federal court , alleging host ile work environm ent and ret aliat ion, including act s occurring on Novem ber 2, 2009, Novem ber 3, 2009, June 15, 2010, and July 15, 2011. 05/ 07/ 13 – Plaint iff appeals Juarez I . The Court finds it unnecessary t o address fact s relat ing t o t he m erit s of Plaint iff’s claim s. W a ive r / La w of t h e Ca se Before grant ing sum m ary j udgm ent t o Defendant in Juarez I , t he court reviewed t he pret rial order. Alt hough t he pret rial order m ent ioned several incident s of alleged discrim inat ion, harassm ent , or m ist reat m ent , it st at ed only one claim : t hat Plaint iff had been denied a specific prom ot ion because of his nat ional origin or ancest ry. The court properly found t hat no claim for host ile work environm ent or ret aliat ion had been included in t he pret rial order and t hat “ plaint iff ha[ d] waived t he ot her claim s by failing t o include t hem and t heir elem ent s in t he pret rial order.” Dk. 19, Exh. 10, p. 11. The 5 court considered evidence of harassm ent or ret aliat ion in Juarez I only t o t he ext ent such evidence was relevant in deciding Plaint iff’s failure t o prom ot e claim . Plaint iff argues t hat t he int ent of t he Court in Juarez I w as not t o bar his host ile work environm ent and ret aliat ion claim s in fut ure lit igat ion, but m erely t o find t hat such claim s were not included in Juarez I . Plaint iff not es t hat t hese claim s were not resolved on t heir m erit s and “ did not accrue unt il t he lit igat ion in Juarez I was all but com plet ed.” Dk. 28, p. 20. The Court agrees t hat t he Court ’s st at em ent in Juarez I does not preclude t he Plaint iff from bringing his harassm ent or ret aliat ion claim s in t his case. The t hornier issue is whet her Plaint iff has im properly split his claim s. Cla im Pr e clu sion Claim split t ing is closely relat ed t o res j udicat a. The doct rine of res j udicat a prohibit s a part y from assert ing in a second lawsuit any m at t er t hat m ight have been assert ed in t he first lawsuit . Prospero Associat es v. Burroughs Corp., 714 F.2d 1022, 1025 ( 10t h Cir. 1983) . I n order for t he doct rine t o apply, t hree elem ent s m ust be present : ( 1) t he first suit m ust have proceeded t o a final j udgm ent on t he m erit s; ( 2) t he part ies m ust be ident ical or in privit y; and ( 3) t he suit s m ust be based on t he sam e cause of act ion. Clark v. Haas Group, I nc., 953 F.2d 1235, 1236 ( 10t h Cir. 1992) . Here, t here is an ident it y of part ies in bot h suit s. And t he sum m ary j udgm ent in Juarez I was a j udgm ent on t he m erit s. Thus res j udicat a bars t his suit t o t he degree t hat it was based on t he sam e cause of act ion as in Juarez I . I n det erm ining whet her t he suit s are based on t he sam e cause of 6 act ion, t he Tent h Circuit applies t he t ransact ional approach, advocat ed by t he Rest at em ent ( Second) of Judgm ent s § 24 ( 1982) . Pet rom anagem ent Corp. v. Acm e- Thom as Joint Vent ure, 835 F.2d 1329 ( 10t h Cir. 1988) . See Yapp v. Excel Corp., 186 F.3d 1222, 1227 ( 10t h Cir. 1999) ( cit ing Rest at em ent ( Second) of Judgm ent s § 24 ( 1982) ) . This pragm at ic approach requires t he Court t o t ake int o account t hree fact ors: whet her t he fact s are relat ed in t im e, space, origin, or m ot ivat ion, whet her t hey form a convenient t rial unit , and whet her t heir t reat m ent as a unit conform s t o t he part ies' expect at ions or business underst anding or useage. Rest at em ent § 24( 2) . Part ies cannot defeat t he applicat ion of res j udicat a by sim ply alleging new legal t heories. Clark, 953 F.2d at 1238, cit ing Bolling v. Cit y & Count y of Denver, Colorado, 790 F.2d 67 ( 10t h Cir. 1986) ( res j udicat a barred plaint iff's 42 U.S.C. §§ 1981 and 1983 claim s for t erm inat ion based on sex and race where plaint iff failed t o raise t hose claim s in her prior st at e act ion which challenged t he em ployer’s st at ed reasons for her t erm inat ion) . " Under t he doct rine of claim preclusion, '[ a] final j udgm ent on t he m erit s of an act ion precludes t he part ies or t heir privies from relit igat ing issues t hat were or could have been raised in t hat act ion.'" See Rivet v. Regions Bank of La., 522 U.S. 470, 118 S. Ct . 921, 925, 139 L. Ed. 2d 912 ( 1998) ) ( quot ing Federat ed Dep't St ores, I nc. v. Moit ie, 452 U.S. 394, 398, 101 S. Ct . 2424, 69 L. Ed. 2d 103 ( 1981) ) . Piecem eal lit igat ion undercut s t he finalit y of j udgm ent s, which claim preclusion seeks t o ensure. See 7 Nevada v. Unit ed St at es, 463 U.S. 110, 129–30, 103 S.Ct . 2906, 77 L.Ed.2d 509 ( 1983) . The rule against claim - split t ing requires a plaint iff t o assert all of it s causes of act ion arising from a com m on set of fact s in one lawsuit . By spreading claim s around in m ult iple lawsuit s in ot her court s or before ot her j udges, part ies wast e “ scarce j udicial resources” and underm ine “ t he efficient and com prehensive disposit ion of cases.” Hart sel Springs Ranch of Colo., I nc. v. Bluegreen Corp., 296 F.3d 982, 985 ( 10t h Cir. 2002) . We review for abuse of discret ion when a dist rict court 's “ dism issal for claim - split t ing was prem ised in significant m easure on t he abilit y of t he dist rict court t o m anage it s own docket ,” id., and will reverse t he dist rict court only if we find it s j udgm ent “ exceeded t he bounds of t he rat ionally available choices given t he fact s and t he applicable law in t he case at hand.” Big Sky Net work Canada, Lt d. v. Sichuan Provincial Gov't , 533 F.3d 1183, 1186 ( 10t h Cir. 2008) . Kat z v. Gerardi, 655 F.3d 1212, 1217 ( 10t h Cir. 2011) . The Rest at em ent ( Second) of Judgm ent s § 24( 1) ( 1982) explains t he general rule against “ claim split t ing” : When a valid and final j udgm ent rendered in an act ion ext inguishes t he plaint iff's claim pursuant t o t he rules of m erger or bar ... t he claim ext inguished includes all right s of t he plaint iff t o rem edies against t he defendant wit h respect t o all or any part of t he t ransact ion, or series of connect ed t ransact ions, out of which t he act ion arose. Mascarenas Ent erprises, I nc. v. Cit y of Albuquerque, 494 Fed.Appx. 846, 851, 2012 WL 3292396, 4 ( 10t h Cir. 2012) . So, for exam ple, where a plaint iff has an opport unit y t o am end an ADEA/ Tit le VI I com plaint t o add ERI SA or ot her claim s, but fails t o do so, t he plaint iff cannot rem edy t hat defect by bringing anot her suit alleging a different legal t heory yet t he sam e plaint iff, defendant , and operat ive fact s. Myers v. Colgat e- Palm olive Co., 102 F.Supp.2d 1208, 1224 ( D.Kan. 2000) ( finding t he plaint iff's age and sex 8 discrim inat ion case and her ERI SA case arose out of t he sam e t ransact ional nucleus of fact s and would involve subst ant ially t he sam e evidence since bot h com plaint s would t urn on t he sam e prim ary issue, nam ely, what t he defendant 's real reason was for t erm inat ing t he plaint iff) . See Kat z v. Gerardi, 655 F.3d 1212, 1218- 19 ( 10t h Cir. 2011) ( affirm ing dism issal based on claim split t ing where plaint iff had filed t wo cases in t he sam e dist rict court , involving t he sam e subj ect m at t er, seeking t he sam e claim s for relief against t he sam e defendant s) . I n em ploym ent claim s, t he Tent h Circuit has consist ent ly held t hat “ all claim s arising from t he sam e em ploym ent relat ionship const it ut e t he sam e t ransact ion or series of t ransact ions for claim preclusion purposes.” Mit chell v. Cit y of Moore, 218 F.3d 1190, 1202 ( 10t h Cir. 2000) . See Wilkes v. Wyom ing Dept . of Em ploym ent Div. of Labor St andards, 314 F.3d 501, 504 ( 10t h Cir. 2002) ; Clark v. Haas Group, I nc., 953 F.2d 1235, 1239 ( 10t h Cir. 1992) ; Yapp, 186 F.3d at 1228; Leo v. Garm in I nt ern., I nc., 464 Fed.Appx. 737 ( 10t h Cir. 2012) ; Gardner v. Cent ral Texas College, 259 Fed.Appx. 136, 138 ( 10t h Cir. 2007) ; Coffm an v. Venem an, 175 Fed.Appx. 985 ( 10t h Cir. 2006) . Plaint iff’s harassm ent and ret aliat ion claim s raised in t his case arise from t he sam e em ploym ent relat ionship as did his failure t o prom ot e claim in Juarez I . 9 Su bse qu e n t Eve n t s But Plaint iff cont ends t hat he could not have included his ret aliat ion and harassm ent claim s in Juarez I because som e of t he act s alleged in t his case did not occur unt il aft er he filed his first KHRC/ EEOC charge on May 13, 2009. Act s occurring on Novem ber 2, 2009, Novem ber 3, 2009, June 15, 2010 and July 15, 2011, are list ed as exam ples of ret aliat ion in plaint iff’s second adm inist rat ive charge and could not have been included in his first EEOC charge. I n support of t his posit ion, plaint iff relies on a case from t he Second Circuit , St orey v. Cello Holdings, LLC, 347 F.3d 370, 384 ( 2003) , and t he following language from t he Tent h Circuit , which he concedes is m ere dict a: While we have yet t o decide t he issue, we agree wit h t hose court s holding t he doct rine of claim preclusion does not necessarily bar plaint iffs from lit igat ing claim s based on conduct t hat occurred aft er t he init ial com plaint was filed. See Johnson v. Board of Count y Com m 'rs of Johnson Count y, Kansas, No. 99–2289–JWL, 1999 WL 1423072, at * 3–4 ( D.Kan. Dec. 9, 1999) ( “ Because a plaint iff has no obligat ion t o expand his or her suit in order t o add a claim t hat he or she could not have assert ed at t he t im e t he suit was com m enced, several circuit s have held t hat res j udicat a does not bar a second lawsuit t o t he ext ent t hat suit is based on act s occurring aft er t he first suit was filed.” ) Mit chell v. Cit y of Moore, Oklahom a, 218 F.3d 1190, 1202- 03 ( 10t h Cir. 2000) . This dict a, even if persuasive, would not assist t his Plaint iff because t he event s he alludes t o occurred, wit h one except ion, before he filed his first com plaint . But t his court is not persuaded by t he dict a because t he 10 Tent h Circuit has published law on t he narrower issue, as det ailed below, and because Plaint iff has failed t o show t hat t he subsequent event s in t his suit were so unrelat ed t o t hose in t he prior case ( t em porally or ot herwise) t hat he could not have brought t hese claim s in his prior suit . Adm in ist r a t ive Ex h a u st ion Plaint iff cont ends t hat he could not have included his ret aliat ion and harassm ent claim s in Juarez I because he was required t o exhaust adm inist rat ive rem edies and did not receive t he necessary right t o sue let t er from t he EEOC unt il over a year aft er t he deadline had passed t o am end his com plaint in Juarez I . The record confirm s t hat t he plaint iff’s second right t o sue let t er was issued on January 23, 2013, aft er sum m ary j udgm ent m ot ions had been fully briefed and approxim at ely t wo m ont hs before t he court ruled on t hose m ot ions by grant ing sum m ary j udgm ent in Juarez I . At first blush, it appears t hat t his scenario m ay fall wit hin a recognized except ion t o t he Rest at em ent ’s general rule concerning split t ing: ( 1) When any of t he following circum st ances exist s, t he general rule of § 24 does not apply t o ext inguish t he claim , and part or all of t he claim subsist s as a possible basis for a second act ion by t he plaint iff against t he defendant : … ( c) The plaint iff was unable t o rely on a cert ain t heory of t he case or t o seek a cert ain rem edy or form of relief in t he first act ion because of t he lim it at ions on t he subj ect m at t er j urisdict ion of t he court … Rest at em ent ( Second) of Judgm ent s § 26. I n t he Tent h Circuit , filing a charge of discrim inat ion wit h t he EEOC is a j urisdict ional prerequisit e t o t he 11 inst it ut ion of a lawsuit based on a claim of em ploym ent discrim inat ion under Tit le VI I . See Shikles v. Sprint / Unit ed Mgm t . Co., 426 F.3d 1304, 1317 ( 10t h Cir. 2005) . Federal court s t hus lacks j urisdict ion t o decide Tit le VI I claim s t hat are not part of a t im ely- filed EEOC charge, including act ions t hat occurred aft er t he charge was filed. Annet t v. Universit y of Kansas, 371 F.3d 1233, 1238 ( 10t h Cir. 2004) . But t he Tent h Circuit has squarely held t hat t his part icular scenario provides no except ion t o t he general rule of claim preclusion. Wilkes, 314 F.3d at 504- 505. Cf Haynes v. Kansas, 261 Fed.Appx. 87 ( 10t h Cir. 2008) ( rej ect ing argum ent t hat EEOC filing requirem ent s prevent plaint iffs from raising discrim inat ion claim s in an init ial suit ) . I n Wilkes, as here, t he plaint iff cont ended t hat claim preclusion should not bar t he second suit because she was st at ut orily prohibit ed from bringing her Tit le VI I claim unt il she received her right - t o- sue let t er from t he EEOC. The Tent h Circuit rej ect ed t hat argum ent , finding t hat t he plaint iff could have request ed a right - t o- sue not ice, and t hen am ended her equal pay act com plaint t o add her Tit le VI I claim . Alt ernat ively, t he plaint iff could have filed her equal pay claim , sought a st ay in t he dist rict court , let t he EEOC com plet e it s adm inist rat ive process, wait ed t o receive her right - t o- sue let t er, t hen added her Tit le VI I claim t o her init ial lawsuit by am ending her com plaint pursuant t o Federal Rule of Civil Procedure 15. 314 F.3d at 506. 12 Here, as in Wilkes, t he “ t ransact ion” for res j udicat a purposes was t he plaint iff’s em ploym ent . This court repeat edly has held t hat “ all claim s arising from t he sam e em ploym ent relat ionship const it ut e t he sam e t ransact ion or series of t ransact ions for claim preclusion purposes.” Mit chell v. Cit y of Moore, 218 F.3d 1190, 1202 ( 10t h Cir. 2000) . See Clark v. Haas Group, I nc., 953 F.2d 1235, 1239 ( 10t h Cir. 1992) ( holding plaint iff's second suit was barred by claim preclusion because “ t he ‘claim s' in each case were predicat ed on [ plaint iff's] em ploym ent ” ) ; Yapp, 186 F.3d at 1228 ( st at ing “ [ t ] he court in Clark elim inat ed all am biguit y in t he m eaning of ‘t ransact ion’ in t his fact ual cont ext : it st at ed t hat t he ‘t ransact ion’ was Clark's em ploym ent ” ( int ernal quot at ions om it t ed) ) . I n Clark and Yapp, t he plaint iffs brought act ions against t heir form er em ployers under t he Fair Labor St andards Act , 29 U.S.C. § 216( b) , for unpaid overt im e com pensat ion, and lat er brought second act ions against t heir form er em ployers for wrongful discharge. On appeal, t his court held t hat plaint iffs' second suit s were precluded since t hey were based upon t he sam e t ransact ions, i.e., t he em ploym ent relat ionships. Wilkes, 314 F.3d at 504- 505. The Court t hus barred plaint iff’s Tit le VI I claim because it arose from t he sam e t ransact ion – plaint iff’s em ploym ent relat ionship – as did her first lawsuit alleging FLSA violat ions. See King v. Union Oil Co. of California, 117 F.3d 443 ( 10t h Cir. 1997) ( finding t he em ployee’s t erm inat ion and lat er denial of benefit s were separat e fact ual event s but were relat ed t ransact ions, so res j udicat a barred plaint iff from bringing ERI SA claim separat e from his discrim inat ion and ret aliat ion claim s.) The relevant inquiry here, t hen, is whet her t he Plaint iff could have brought all his relat ed t heories of recovery in his first act ion. “ One m aj or funct ion of claim preclusion … is t o force a plaint iff t o explore all fact s, develop all t heories, and dem and all t he rem edies in t he first suit .” St one v. 13 Depart m ent of Aviat ion, 453 F.3d 1271, 1279 ( 10t h Cir. 2006) ( quot ing 18 Federal Pract ice and Procedure, §4408) . …The argum ent t hat it was not possible t o bring all relat ed t heories of recovery or dem ands for relief in a first act ion m ay not overcom e a claim - preclusion defense if t he plaint iff could have m ade it possible. A cont em porary illust rat ion is provided by discrim inat ion claim s t hat can be brought only aft er init ial recourse t o an adm inist rat ive agency. A plaint iff who sues first on a t heory t hat does not require resort t o t he agency and t hen sues again aft er clearing t he agency process m ay find t hat claim preclusion arises from failure t o t ake readily available st eps t o ensure t hat bot h t heories could be t ried t oget her. St one, 453 F.3d at 1279, n. 10 ( 10t h Cir. 2006) , quot ing 18 Federal Pract ice and Procedure § 4409 ( em phasis added) . See Wilkes, 314 F.3d at 506 ( not ing t hat t he plaint iff can always request a right - t o- sue let t er from t he EEOC once t he charge has been pending before t hat agency for 180 days.) The sam e rule applies t o claim s arising from event s t hat do not occur or m at ure unt il aft er t he first act ion is filed. Crit ically, [ t he claim preclusion] doct rine requires a plaint iff t o j oin all claim s t oget her t hat t he plaint iff has against t he defendant whenever during t he course of t he lit igat ion relat ed claim s m at ure and are able t o be m aint ained. Thus, even if an addit ional claim does not m at ure unt il well aft er t he init ial com plaint has been filed, t he plaint iff nevert heless m ust seek t o am end t he com plaint t o add addit ional claim s as a com pulsory claim when t he addit ional claim can be brought . St one, 453 F.3d at 1278 - 1279 ( em phasis in original) ( addressing com pulsory count erclaim s) . Sim ilarly, t he rule applies t o a lit igant who brings sequent ial Tit le VI I cases arising from t he sam e em ploym ent relat ionship where, as here, a plaint iff could am end t he first case t o include claim s based on subsequent 14 event s. I t is t rue t hat “ each discret e incident of [ discrim inat ory or ret aliat ory] t reat m ent const it ut es it s own unlawful em ploym ent pract ice for which adm inist rat ive rem edies m ust be exhaust ed.” Nat ional Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 110–14, 122 S.Ct . 2061, 153 L.Ed.2d 106 ( 2002) ) . And conduct occurring aft er t he filing of an em ployee's Tit le VI I com plaint in federal court involving “ discret e and independent [ ret aliat ory] act ions” requires t he filing of a new EEOC charge, even when t hat conduct relat es t o ot hers present ed t o t he EEOC. Mart inez v. Pot t er, 347 F.3d 1208, 1210–11 ( 10t h Cir. 2003) . See Eisenhour v. Weber Count y et al, __ F.3d __ ( 10t h Cir. 2013) . But a lit igant await ing a right - t o- sue let t er from t he EEOC has at least five opt ions t o preserve his claim : ( 1) he can ask t he EEOC or it s st at e count erpart t o accelerat e t he adm inist rat ive process; ( 2) he can seek an agreem ent wit h his form er em ployer not t o plead t he st at ut e of lim it at ions; ( 3) he can agree wit h his em ployer t o split a single claim int o t wo or m ore suit s; ( 4) he can delay t he filing of t he first suit unt il t he last possible m om ent ; or ( 5) he can request t hat t he court post pone or st ay t he first case unt il he receives t he right - t o- sue let t er. Brzost owski v. Laidlaw Wast e Sys., I nc., 49 F.3d 337, 339 ( 7t h Cir. 1995) . See Czarniecki v. Cit y of Chicago, 633 F.3d 545, 550–51 ( 7t h Cir. 2011) . Plaint iff did none of t hese, and has not shown t hat he was unable t o bring bot h of his act ions t oget her. A lit igant need not wait t he full 180 days before receiving his right - t osue let t er. I nst ead, a plaint iff m ay request a right - t o- sue let t er before t he 15 expirat ion of t he 180- day wait ing period, as t he relevant regulat ion expressly st at es: [ w] hen a person claim ing t o be aggrieved request s, in writ ing, t hat a not ice of right t o sue be issued ..., t he Com m ission m ay issue such not ice ... at any t im e prior t o t he expirat ion of 180 days from t he dat e of filing t he charge wit h t he Com m ission; provided, t hat ... it is probable t hat t he Com m ission will be unable t o com plet e it s adm inist rat ive processing of t he charge wit hin 180 days from t he filing of t he charge and has at t ached a writ t en cert ificat e t o t hat effect . 29 C.F.R. § 1601.28( a) ( 2) . See Beaver v. Prudent ial I ns. Co. of Am erica, 1995 WL 670119, 2 ( D.Kan. 1995) . Plaint iff received his right - t o- sue let t ers in Juarez I and in t his case approxim at ely 14 m ont hs aft er he filed t hem , dem onst rat ing t hat which is well known t o lit igant s in t his j urisdict ion – t hat t he EEOC probably will not be able t o com plet e it s adm inist rat ive processing of a charge wit hin 180 days of it s filing. Accordingly, it is very likely t hat t he EEOC would have issued a right t o sue let t er t o t he Plaint iff had he request ed it soon aft er he filed his second EEOC charge. Plaint iff could have filed his second KHRC/ EEOC charge as early as July 16, 2011, as t he charge includes no event s aft er t hat dat e. Plaint iff st at es no reason for his delay in not filing it unt il Novem ber 3rd. Even so, plaint iff could have request ed his right t o sue let t er soon t hereaft er, and m ay have received it before t he Decem ber 30t h deadline for am ending his com plaint in Juarez I . And if Plaint iff had not received t he right t o sue let t er by t hat dat e, Plaint iff could have asked for a st ay of Juarez I unt il he received t he let t er, 16 t hen am ended his com plaint in t hat case t o include t he claim s he now m akes in t his case. Lit igant s in such circum st ances have a very st rong case for request ing a st ay. See Herrm ann v. Cencom Cable Assocs., 999 F.2d 223, 225 ( 7t h Cir. 1993) ( not ing a plaint iff who files som e claim s t o preserve t hem while exhaust ing Tit le VI I adm inist rat ive rem edies could ask t he dist rict court for a st ay and “ would have a very st rong case for doing so.” ) ; Churchill v. St ar Ent ers., 183 F.3d 184, 194 ( 3d Cir. 1999) ( “ We believe t hat dist rict court s are likely t o look favorably on applicat ions for st ays of FMLA proceedings while plaint iffs prom pt ly pursue adm inist rat ive rem edies under Tit le VI I and sim ilar st at e laws and we urge t hem t o do so.” ) . I n fact , t he m agist rat e j udge in t his case showed his recept iveness t o a request for a st ay by am ending t he scheduling order t o com ply wit h Plaint iff’s st at ed desire t o bring his ret aliat ion and ot her claim s in one case. That order reflect s t hat t he m agist rat e j udge found good cause t o am end t he scheduling order because “ plaint iff soon will m ove for leave t o file an am ended com plaint wit h a new ret aliat ion claim ,” and t hat “ plaint iff j ust recent ly filed an adm inist rat ive com plaint for ret aliat ion and he has not yet received a “ right - t o- sue let t er from t he [ KHRC.] ” Juarez I , No. 10- 4145- WEB, Dk. 53, p. 1 Plaint iff t hus had t he opport unit y and t he abilit y t o perfect and exhaust during Juarez I all of t he claim s he m akes in t his case. I nst ead of doing so, Plaint iff sat on his right s and burdened t he court and t he defendant by claim 17 split t ing. The fact s assert ed in t his case are sufficient ly relat ed in t im e, space, origin, and m ot ivat ion, t o t hose assert ed in Juarez I t o warrant t rying t hem t oget her. For all t he reasons st at ed above, t his case is barred by claim preclusion. The Court finds it unnecessary t o address Defendant ’s alt ernat ive argum ent s. I T I S THEREFORE ORDERED t hat Defendant ’s m ot ion t o dism iss is grant ed. Dat ed t his 8t h day of January 2014, at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 18
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