                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-8170.

                             Sandra L. PLEMING, Plaintiff-Appellant,

                                                  v.

                UNIVERSAL-RUNDLE CORPORATION, Defendant-Appellee.

                                            June 8, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-CV-
0317-MHS), Marvin H. Shoob, Judge.

Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and COHILL*, Senior District Judge.

       BIRCH, Circuit Judge:

       This appeal requires us to address whether the doctrines of res judicata or collateral estoppel

bar a cause of action for employment discrimination and retaliation. In the course of prior litigation,

the parties briefed and discussed the incidents giving rise to the complaint in the present case but

never amended the pleadings in the first litigation to include a claim based on the incidents. The

plaintiff-appellant maintains that, because our precedents did not require her to amend her complaint

to include claims based on incidents of alleged discrimination discovered after she filed her first

lawsuit, res judicata and collateral estoppel cannot now prevent her from bringing the discovered

claims in a second lawsuit. The district court found that the plaintiff-appellant had asserted the

subsequent incidents before the first court and, therefore, held that res judicata or, alternatively,

collateral estoppel barred the suit. We disagree and REVERSE.

                                          BACKGROUND


   *
   Honorable Maurice B. Cohill, Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
       In the summer of 1992, plaintiff-appellant, Sandra L. Pleming, suffered a back injury while

she worked as a laborer for defendant-appellee, Universal-Rundle Corporation ("Universal-

Rundle"). In July 1993, she applied for a clerical position that would have been less physically

demanding but would have paid her less than what she earned as a laborer. Although apparently

qualified for the position, Pleming did not receive the job. In August 1994, Pleming filed an

employment discrimination lawsuit in federal district court alleging that Universal-Rundle had

discriminated against her based on her race and disability. Pleming's complaint relied on Title VII,

42 U.S.C. § 2000e, et. seq., and 42 U.S.C. § 1981. Although Pleming stated a prima facie case of

discrimination, Universal-Rundle explained that it had not hired Pleming for the clerical position

because the company had a policy against allowing employees to transfer to lower paying jobs.

       In October 1994, during the course of the litigation, two additional clerical positions of the

type Pleming sought opened at Universal-Rundle. Pleming did not apply for either of these

positions and the company filled them with other applicants. In fact, Pleming did not learn about

these additional positions at Universal-Rundle until May 1995, during the course of discovery.

Although Pleming never amended her complaint to include allegations of discrimination arising out

of these incidents, she described the incidents in her briefs before the magistrate judge and the

district court. Pleming sought to use these incidents to prove that Universal-Rundle's policy was a

pretext for discrimination and thus avoid summary judgment on her claims arising out of the July

1993 hiring decision. A magistrate judge found that Pleming's claims of racial discrimination were

sufficient to withstand Universal-Rundle's motion for summary judgment. The magistrate judge's

report and recommendation (the "report") included a reference to the two clerical positions that

Universal-Rundle had filled after Pleming filed her complaint. The district court, however, granted


                                                 2
summary judgment in favor of Universal-Rundle, finding that Pleming had failed to prove that the

company's non-discriminatory explanation was pretext, and a panel of this court affirmed without

opinion. See Pleming v. Universal-Rundle Corp., No. 1:94-cv-2004-RLV, slip. op. (N.D.Ga. Nov.

22, 1995), aff'd, 100 F.3d 971 (11th Cir.1996) ("Pleming I ").

        On January 30, 1996, after the district court entered summary judgment in favor of

Universal-Rundle in Pleming I, Pleming filed another complaint in federal district court alleging

discrimination and retaliation against her in the company's decision to hire other applicants for the

October 1994 clerical openings. Pleming based her claims in this second lawsuit on 42 U.S.C. §

1981. Universal-Rundle moved to dismiss the complaint on the ground that either res judicata or

collateral estoppel barred the suit because Pleming had already litigated and lost on her claims

arising out of the October 1994 hiring decisions. The district court agreed and dismissed Pleming's

complaint.

                                           DISCUSSION

        We subject the district court's decision to dismiss a complaint pursuant to Federal Rule of

Civil Procedure 12(b) to de novo review. See In re Johannessen, 76 F.3d 347, 349 (11th Cir.1996).

Although the parties are in essential agreement about the material facts of the case, we assume the

allegations of the plaintiff's complaint to be true and construe the facts in the light most favorable

to the plaintiff. Id. at 350.

I. Res Judicata

         First, we address the district court's holding that the principles of res judicata barred

Pleming's second lawsuit. As the district court correctly observed, the doctrine of res judicata

provides repose by preventing the relitigation of claims that have already been fully litigated and


                                                  3
decided. Res judicata, or claim preclusion, bars a subsequent claim when a court of competent

jurisdiction entered a final judgment on the merits of the same cause of action in a prior lawsuit

between the same parties. See I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1549 (11th

Cir.1986).1 Pleming concedes that, if her second suit involves the same cause of action decided in

Pleming I, res judicata bars this litigation because her case satisfies all the other elements of the

doctrine.

         The determination of whether a litigant has asserted the same cause of action in two

proceedings depends upon whether the primary right and duty are the same in both cases. See

Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir.1992). 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." Id. at 1358-59 (quoting NAACP v. Hunt,

891 F.2d 1555, 1561 (11th Cir.1990) (internal quotation omitted)). A court, therefore, must examine

the factual issues that must be resolved in the second suit and compare them with the issues explored

in the first case. Id. at 1359.




   1
    Neither the parties nor the district court address whether state or federal principles of res
judicata apply to the case at bar. Our precedents on this question appear to lead in two different
directions. Compare Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th
Cir.1984) (a federal court reviewing the preclusive effect of a prior federal judgment applies
federal common law) with NAACP v. Hunt, 891 F.2d 1555, 1560 (11th Cir.1990) ("Federal
courts apply the law of the state in which they sit with respect to the doctrine of res judicata.").
As a result, the district courts have found themselves in some confusion. See e.g., Jones v. New
England Life Ins. Co., 974 F.Supp. 1476, 1479-81 (M.D.Ga.1996) (describing these precedents).
Since both federal and Georgia principles of res judicata require the cause of action in the first
and second lawsuit to be the same, compare Durbin, 793 F.2d at 1549, with Waldroup v. Greene
County Hosp. Auth., 265 Ga. 864, 866, 463 S.E.2d 5, 7 (1995), we need not resolve the conflict
to decide this appeal. We note the problem, however, in the hope that future litigants will
consider and brief the issue.

                                                 4
        Pleming's first lawsuit claimed that Universal-Rundle discriminated against her when the

company hired a less qualified white employee for a specific clerical position in July 1993. Pleming

did not learn that the company had engaged in alleged further discrimination against her by filling

two subsequent administrative openings in October 1994 without considering her, until May 1995,

during the conduct of discovery in the first lawsuit. Pleming's first complaint, therefore, contained

no mention of these subsequent hiring decisions and Pleming did not amend her complaint to include

them.

        In Manning, we considered a situation in which a plaintiff elected not to participate in an

employment discrimination class-action but brought a second suit alleging employment

discrimination against the same defendant. The operative facts that gave rise to the plaintiff's claims

for discrimination had not occurred when the class filed its claim but some of those facts occurred

before the district court dismissed the plaintiff from the class action. The Manning plaintiff,

therefore, had an opportunity to preserve her claims in the class action by filing a supplemental

pleading or by participating in discovery in that case. See id. at 1359. We, however, observed that

Federal Rule of Civil Procedure 15(d), which governs supplemental pleadings, makes such a

pleading optional and held that the doctrine of res judicata does not punish a plaintiff for exercising

the option not to supplement the pleadings with an after-acquired claim. Id. at 1360. We explained

that the parties frame the scope of litigation at the time the complaint is filed and that a judgment

is only conclusive regarding the matters that the parties might have litigated at that time but not

regarding "new rights acquired, pending the action which might have been, but which were not

required to be litigated." Id. (quoting Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist.,

750 F.2d 731, 739 (9th Cir.1984)) (internal quotations omitted). We then explained that:


                                                  5
       [W]e do not believe that the res judicata preclusion of claims that "could have been brought"
       in earlier litigation includes claims which arise after the original pleading is filed in the
       earlier litigation. Instead, we believe that, for res judicata purposes, claims that "could have
       been brought" are claims in existence at the time the original complaint is filed or claims
       actually asserted by supplemental pleadings or otherwise in the earlier action.

Id. (second emphasis added) (footnote omitted); see also Commercial Box & Lumber Co. v.

Uniroyal, Inc., 623 F.2d 371, 374 n. 2 (5th Cir.1980) (arriving at a similar conclusion).2

        The parties in this case agree that the events giving rise to Pleming II arose well after

Pleming filed and amended her complaint in the first lawsuit. The parties also agree that, given our

holding in Manning, Pleming was under no obligation to amend or supplement her complaint and

that she did not do so. Universal-Rundle, however, points out that the Manning opinion left open

the possibility that a litigant could assert a claim by other means and contends that Pleming actually

asserted her claims arising out of the October 1994 hiring decisions in the Pleming I proceedings

by including those incidents in her briefs. Pleming admits that her briefs did refer to these incidents

to provide evidence that Universal-Rundle's explanation for hiring someone else in July 1993 was

pretextual. The question of whether res judicata bars Pleming's claims, therefore, turns on whether

the discussion of a related but distinct cause of action in briefs amounts to the actual assertion of

that claim in the first proceeding.3


   2
   In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
   3
    Universal-Rundle also contends that the July 1993 and October 1994 incidents do not present
factually distinct causes of action, but rather the same claim litigated on a different legal theory.
Universal-Rundle's argument that both incidents concern the company's duty to hire Pleming in a
clerical capacity is overbroad and unpersuasive. Pleming has not attempted to relitigate the
circumstances of the July 1993 hiring decision under a different legal theory. Instead, Pleming
alleges that the October 1994 incidents, which took place over a year later, constitute
independent acts of discrimination. See e.g., Mahroom v. Hook, 563 F.2d 1369, 1377 (9th

                                                  6
       We addressed a similar question in Coon v. Georgia Pacific Corp., 829 F.2d 1563 (11th

Cir.1987), and held that a district court had not abused its discretion by refusing to consider a

plaintiff's unpled claims even though the plaintiff had included the claims in her briefs and discovery

requests. Id. at 1568-71. In Georgia Pacific, the district court held that the plaintiff's references to

unpled incidents of alleged discrimination in her pretrial stipulation, in her motions before the court,

and throughout the conduct of discovery were no substitute for the factual allegations of a complaint

required by Federal Rule of Civil Procedure 8. We affirmed the district court, noting that although

the plaintiff was free to plead her additional claims in the litigation, she had not done so: "These

claims were not somehow "present' within her complaint, despite her failure to allege them." Id. at

1570. Of particular relevance to the case before us, the Georgia Pacific court rejected the plaintiff's

argument that the claims were properly before the district court because she alleged they were part

of a "continuing violation." Id. (citing cases that require a plaintiff to plead instances of continuing

violations that occur after the initiation of an EEOC charge or similar litigation before they are

properly before the court); Jones v. Florida Power Corp., 825 F.2d 1488, 1492-93 (11th Cir.1987)

(upholding a district court's refusal to hear evidence on incidents of discrimination that tended to

establish a pattern of racial discrimination because the plaintiff's complaint contained no allegations

regarding either the incidents or the pattern of discrimination); see also Wu v. Thomas, 863 F.2d

1543, 1548-49 (11th Cir.1989) (inclusion of testimony in a prior action that touched on the substance




Cir.1977) (holding that identical allegations of discrimination in connection with a hiring
decision two years after the subject of an earlier proceeding constituted a separate cause of
action). Universal-Rundle's reliance on ambiguous language in our predecessor court's opinions
to support the proposition that res judicata bars litigation regarding subsequent acts that arise
after the plaintiff files a complaint in the first action but before the court enters judgment is
unpersuasive in light of our opinion in Manning.

                                                   7
of second cause of action for retaliation could not implicitly amend the complaint in the prior

action).

           Although Manning intimated that a litigant may "otherwise" assert a claim, without filing

a supplemental pleading, the court did not purport to suspend the Federal Rules of Civil Procedure.

We believe that these other means must conform with the rules of procedure and would, for

example, include an amendment pursuant to Rule 15(b) or the assertion of a claim through a pretrial

order pursuant to Rule 16(e).4 Neither of these options apply to this case. Since Universal-Rundle

objected to Pleming's statements about the October 1994 incidents in her briefs, it is clear that the

parties could not have tried the issue "by express or implied consent." See Fed.R.Civ.P. 15(b)

(which permits a court to treat such issues as if they had been pled in the complaint). Moreover,

neither the magistrate judge nor the district court entered a pretrial order in this case.

       Pleming's references to the October 1994 incidents of alleged discrimination during the first

lawsuit are similar to the references that we have held insufficient to assert a claim before a district

court. In her response to Universal-Rundle's motion for summary judgment, Pleming argued that

the October 1994 incidents demonstrated pretext in connection with the July 1993 hiring decision

and asserted that the incidents constituted evidence of a "continuing violation." Pleming also used

the October 1994 incidents in her objections to the magistrate judge's report to provide evidence of

discriminatory intent. As the cases discussed above reveal, however, Pleming's references to the



   4
    We note, however, that there is precedent in this circuit, preceding our opinion in Manning,
that holds that a plaintiff's interjection of unpled matters into a supplementary pretrial statement
and introduction of evidence on those matters as "background material" to distinct legal claims
does not bar the subsequent litigation of the plaintiff's independent claims arising out of those
matters. See Stevenson v. International Paper Co., 516 F.2d 103, 111 (5th Cir.1975). We
express no opinion on whether the result in Stevenson properly might be limited to its facts.

                                                   8
incidents in her briefs were insufficient to put her claims of discrimination and retaliation arising

out of the October 1994 incidents before the district court pursuant to the Federal Rules of Civil

Procedure. Accordingly, these references were insufficient to actually assert these claims in the

prior litigation as contemplated in Manning.

       Universal-Rundle pushed for exactly this conclusion before the magistrate judge and the

district court in Pleming I when it argued that the October 1994 incidents were beyond the scope of

Pleming's complaint and therefore not properly before the court. The company now contends that

the magistrate judge implicitly rejected its position by including Pleming's contentions in his report.

The "Background Facts" portion of the report includes two sentences regarding the October 1994

vacancies, but the report limits its analysis to Pleming's claim of discrimination arising out of the

company's July 1993 decision to award the clerical position to a white employee.5 Similarly, the

district court's opinion, which rejected the magistrate judge's conclusions on the employment

discrimination claims and granted Universal-Rundle's motion for summary judgment, made no

mention of the October 1994 incidents. The isolated reference in the magistrate judge's report does

not support the defendant's contention that the magistrate judge and the district court actually

adjudicated an unpled and unasserted claim. At best, the report's reference to the post-1993

openings indicates that the magistrate judge may have considered the events as evidence of pretext

but does nothing to suggest that the magistrate judge actually rendered a decision about whether

those events constituted independent or even continuing acts of employment discrimination. As a




   5
   The report states in pertinent part: "Other clerical positions became available after July
1993. Plaintiff did not apply for any of these positions." R1-4, Exh.1 at 6 (citations omitted).

                                                  9
result, we find that the district court erred when it decided that res judicata barred Pleming's claims

of discrimination arising out of the October 1994 incidents.

II. Collateral Estoppel

        We must also address the district court's alternative holding that collateral estoppel bars

Pleming's second lawsuit. While res judicata bars the relitigation of claims, collateral estoppel

precludes the relitigation of an issue that has already been litigated and resolved in a prior

proceeding. See Durbin, 793 F.2d at 1549. To claim the benefit of collateral estoppel the party

relying on the doctrine must show that: (1) the issue at stake is identical to the one involved in the

prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination

of the issue in the prior litigation must have been "a critical and necessary part" of the judgment in

the first action; and (4) the party against whom collateral estoppel is asserted must have had a full

and fair opportunity to litigate the issue in the prior proceeding. Id. The district court found that the

Pleming I court, before it could have granted summary judgment in Universal-Rundle's favor,

necessarily evaluated Pleming's claims regarding the October 1994 incidents and found no evidence

of discrimination.

        Our conclusion that Pleming did not actually assert a claim for employment discrimination

arising out of the October 1994 incidents in the first lawsuit leads us to question whether the parties

actually litigated those issues. The United States Court of Appeals for the Seventh Circuit has

explained that the actual litigation requirement for the application of collateral estoppel "will usually

be satisfied merely by the designation of the question as one for trial (for example by its being listed

on the pretrial order as an issue that is to be tried ... ), even if no evidence is introduced...." Truck

Ins. Exch. v. Ashland Oil, Inc., 951 F.2d 787, 792 (7th Cir.1992); see also Restatement (Second) of


                                                   10
Judgments § 27 cmt. d (1982) ("When an issue is properly raised, by the pleadings or otherwise, and

is submitted for determination, and is determined, the issue is actually litigated....").6 Although it

is clear that Pleming made no such formal declaration of her intent to litigate the October 1994

incidents during Pleming I, Universal-Rundle argues that because Pleming offered the incidents as

evidence of discriminatory intent and pretext, Pleming actually litigated her claims for employment

discrimination arising out of those incidents.

        We rejected a similar argument, however, as "completely devoid of merit" in Wu, 863 F.2d

at 1548-49. In that case, we found that a judgment against the plaintiff on prior claims of gender

discrimination did not collaterally estop a subsequent claim for retaliation, even though the

testimony offered in the first trial "touched on" the defendant's retaliatory actions. Id. Similarly, we

cannot accept Universal-Rundle's contention that Pleming litigated her claims arising out of the

October 1994 incidents, including her claims of retaliation for filing Pleming I, simply by offering

the incidents as evidence of pretext in a distinct employment decision. This is not a case in which

the plaintiff squarely presented an issue for decision in the first litigation and failed to carry the

burden of proof; rather, "[i]t was neither framed by the pleadings as an issue nor decided by the

district judge." Ashland Oil, 951 F.2d at 793.

        We note that Pleming's present complaint alleges that Universal-Rundle did not hire her for

a clerical position in October 1994 at least in part to retaliate against her for filing the Pleming I

litigation. Regardless of what else Pleming may have argued in the first lawsuit, it is clear that the


   6
    Once again, we note that the parties and the district court have failed to address whether
federal or state principles of collateral estoppel apply to this question. As we observed above,
however, both Georgia and federal law require the actual litigation of the issue in question in the
prior proceeding. Compare Durbin, 793 F.2d at 1549, with Waldroup, 265 Ga. at 867, 463
S.E.2d at 7.

                                                  11
subject of retaliation did not arise, and Universal-Rundle does not contend otherwise. Moreover,

to the extent Pleming did raise the October 1994 incidents in the first litigation, she did not "actually

litigate" the question of whether those incidents would themselves constitute employment

discrimination. Pleming sought to introduce these incidents to show that Universal-Rundle's citation

to a policy against transferring employees to lower paying jobs was pretextual. Pleming attempted

to show pretext by proving that although Universal-Rundle knew by October 1994 that she could

not handle the physical demands of her higher paying position and, therefore, could not demand that

the company return her to that job, the company still refused to hire her in a clerical position. Much

like we held in Wu, this tangential reference to the events of October 1994 was an insufficient basis

for district court's conclusion that the parties had actually litigated the issue.7 Cf. Rath v. Gallup,

Inc., 51 F.3d 791, 793 (8th Cir.1995) (a plaintiff's failure to establish pretext in a prior litigation

establishes only that the employment decision in question was not improperly motivated and that

was the only issue that was " "actually litigated' for collateral estoppel purposes"); United States

v. Woods, 484 F.2d 127, 138 (4th Cir.1973) (finding that a grant of acquittal on one count of a

criminal prosecution did not collaterally estop the prosecution from offering evidence on that count

to prove absence of accident on other counts). Accordingly, we reverse the district court's

alternative holding that collateral estoppel barred Pleming's suit in this case.



   7
    Throughout its brief Universal-Rundle cites to a number of cases that make the point that
failure to make all the arguments possible in support of a position in the first litigation does not
preclude the application of collateral estoppel. See Zip Dee, Inc. v. Dometic Corp., 905 F.Supp.
535 (N.D.Ill.1995). We find no fault with those cases but find that they offer little assistance in
our analysis of this case. Pleming did not attempt to litigate her independent claims of
employment discrimination and retaliation on a different legal theory in Pleming I; she simply
sought to use them as evidence to contradict Universal-Rundle's explanations regarding the July
1993 decision.

                                                   12
                                           CONCLUSION

        Pleming asks us to reverse the district court's decision to dismiss her complaint as barred by

the doctrines of res judicata and collateral estoppel. We conclude that the district court erred when

it found that Pleming actually asserted claims for employment discrimination and retaliation arising

out of incidents that occurred after she filed her complaint in Pleming I. We also find that the district

court erred in its alternative holding that Pleming's references to these incidents in her briefs in

Pleming I constituted actual litigation of those claims. Accordingly, we hold that res judicata and

collateral estoppel do not bar Pleming's complaint in this subsequent lawsuit. We REVERSE and

REMAND this case to the district court for further proceedings consistent with this opinion.




                                                   13
