                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-2439
                                  ___________

Manuel de Llano                        *
                                       *
             Appellant,                *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the District
Duane Berglund; David Danbom;          * of North Dakota.
Allan G. Fischer; Michael Garrison;    *
Rick D. Johnson; Andy Keogh; Jim L. *
Ozbun; Jimmie Richardson; Charles A. *
Sawicki; Sharon A. Siverts,            *
                                       *
             Appellees.                *
                                  ___________

                            Submitted: March 12, 1999

                                 Filed: July 9, 1999
                                  ___________

Before BEAM and HEANEY, Circuit Judges, and FENNER,1 District Judge.
                            ___________

BEAM, Circuit Judge.

      Manuel de Llano (de Llano), Ph.D., was fired from his position as a tenured
professor at North Dakota State University (NDSU). De Llano filed suit in federal


      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, sitting by designation.
court alleging NDSU violated Title VII. 42 U.S.C. §§ 2000(e) et seq. The jury found
for NDSU. De Llano then filed this action, under 42 U.S.C. § 1983, against the
employees of NDSU who were involved in his termination. De Llano appeals the
district court's dismissal based on res judicata. Because the privity required is lacking,
we reverse.

I.    BACKGROUND

       We review de novo the district court's motion to dismiss under Rule 12(b)(6) for
failure to state a claim. For purposes of our review, all the factual allegations of the
complaint are accepted as true and construed in the light most favorable to de Llano.
See Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998).

      De Llano was a tenured professor and chair of the physics department of NDSU.
In 1990, at the request of the department faculty, he was removed as the department
chair. In 1995, following extensive proceedings, de Llano's employment was
terminated, at which time he no longer taught at NDSU nor received any salary or
benefits. De Llano appealed his termination to the State Board of Higher Education
which affirmed the dismissal in 1997.

        Following his termination in 1995, de Llano filed suit against NDSU in federal
court alleging violation of Title VII. He claimed that NDSU improperly terminated his
employment based on his national origin or in retaliation for filing complaints with the
Equal Employment Opportunity Commission. The jury returned a verdict in favor of
NDSU. Following the verdict and the State Board of Education's determination to
affirm his dismissal, de Llano brought this action under 42 U.S.C. § 1983, for violation
of his free speech and due process rights. This 1983 action does not name NDSU, but
instead is brought against the NDSU employees involved in the termination process.
De Llano specifically amended his complaint to specify that the suit was against the


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employees in their individual capacities. The district court dismissed the complaint,
relying on the doctrine of res judicata.

II.    DISCUSSION

       The doctrine of res judicata, or claim preclusion in this case, bars claims when
"(1) the prior judgment was rendered by a court of competent jurisdiction, (2) the
decision was a final judgment on the merits, and (3) the same cause of action and the
same parties or their privies were involved in both cases." Mills v. Des Arc
Convalescent Home, 872 F.2d 823, 826 (8th Cir. 1989) (quoted source omitted). De
Llano only disputes the third element: whether his Title VII and section 1983 claims
are the same and whether the parties are the same or in privity.

        We need not go any further than to determine whether the parties are the same
or in privity. The district court found that under the doctrine of "virtual representation,"
NDSU and the employees of NDSU, acting in their individual capacities, were
essentially the same party or in privity with one another. Tyus v. Schoemehl, 93 F.3d
449, 454 (8th Cir. 1996). The doctrine of virtual representation does not decide this
case. Instead, the case at bar is controlled by Headley v. Bacon, 828 F.2d 1272 (8th
Cir. 1987). The facts in Headley are nearly identical to de Llano's. In Headley, an
initial Title VII suit was concluded against the City of Grand Island, Nebraska, for
sexual harassment, discrimination, retaliation, and discharge. Id. at 1274. Based upon
the same facts, Headley brought a subsequent suit under section 1983 against the city
employees, acting in their individual capacities, for violation of her due process, equal
protection, and free speech rights.

       The employees in Headley argued that the section 1983 claim was barred by res
judicata. We held that "litigation involving officials in their official capacity does not
preclude relitigation in their personal capacity." Id. at 1279 (citing Roy v. City of
Augusta, 712 F.2d 1517, 1521-22 (1st Cir. 1983); Unimex, Inc. v. HUD, 594 F.2d

                                            -3-
1060, 1061 n.3 (5th Cir. 1979) (per curiam); Restatement (Second) of Judgments §
36(2) & cmt. e (1982); 18 Charles Alan Wright et al., Federal Practice and Procedure
§ 4458 (1981)). Therefore, the city employees, acting in their individual capacities,
were not in privity with the City. Res judicata was not a bar. See id. at 1280.

        In de Llano's case, the first suit was only against NDSU for violation of Title
VII. The instant action is brought under section 1983 against employees of NDSU, in
their individual capacities. The employees successfully argued to the district court that
res judicata bars de Llano's section 1983 claims, but under Headley, privity is lacking.
Thus, res judicata, in the form of claim preclusion, is not a bar to de Llano's section
1983 claims.

III.   CONCLUSION

      For the foregoing reasons, we reverse the district court and remand for further
proceedings.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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