19-962
Wynn v. Union Local 237, I.B.T.

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of December, two thousand nineteen.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           MICHAEL H. PARK,
                       Circuit Judges.
_________________________________________

BRIAN WYNN, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, AWILDA GUZMAN,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, JOSE OTERO, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED, JOHN WILLIAMS,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED, KEVIN FULTON, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,

                   Plaintiffs-Appellants,

                            v.                                         No. 19-962

UNION LOCAL 237, I.B.T.,

           Defendant-Appellee.
_________________________________________
FOR PLAINTIFFS-APPELLANTS:                          LEE NUWESRA, Law Offices of Lee
                                                    Nuwesra, New York, NY.

FOR DEFENDANT-APPELLEE:                             ALEXANDRA HOWELL, Archer, Byington,
                                                    Glennon & Levine LLP, Melville, NY.

       Appeal from a judgment of the United States District Court for the Southern District
of New York (Schofield, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on March 13, 2019, is
AFFIRMED.

       Plaintiffs-Appellants Brian Wynn, Awilda Guzman, Jose Otero, John Williams, and
Kevin Fulton (collectively, “Plaintiffs”) appeal from the District Court’s judgment dismissing
their amended complaint under Rule 12(b)(6) on res judicata grounds. We assume the parties’
familiarity with the underlying facts, procedural history, and arguments on appeal, to which
we refer only as necessary to explain our decision to affirm.

       In 2014, Plaintiffs brought a putative class action against their employer, the New
York City Housing Authority (“NYCHA”), and their labor union, Defendant-Appellee
Union Local 237, I.B.T. (the “Union”). See generally Wynn v. New York City Hous. Auth., No.
14-cv-2818 (S.D.N.Y.) (“Wynn I”). Plaintiffs, all of whom are Black or Hispanic, alleged that
NYCHA paid them less than similarly situated white employees and that their Union tacitly
approved and encouraged this discriminatory compensation scheme, in violation of 42
U.S.C. § 1981, the Equal Protection Clause, and the New York City Human Rights Law
(“NYCHRL”). In March 2017, the District Court (Schofield, J.) granted summary judgment
in favor of NYCHA and the Union, finding that the record contained insufficient evidence
of discriminatory animus. We affirmed this judgment on appeal. See Wynn v. New York City
Hous. Auth., 730 F. App’x 92, 94 (2d Cir. 2018).

       Shortly thereafter, Plaintiffs filed a second action against the Union (“Wynn II”), this
time alleging that the Union violated Title VII, 42 U.S.C. § 2000e et seq., by allowing
NYCHA to pay them less than similarly situated white employees. The District Court



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dismissed Plaintiffs’ amended complaint under Rule 12(b)(6), concluding that their claims
were precluded by res judicata. Plaintiffs then filed this timely appeal.

        We review de novo a district court’s decision to dismiss a complaint on res judicata
grounds, accepting all allegations in the complaint as true and limiting our inquiry to “the
plaintiff’s complaint, documents attached or incorporated therein, and materials appropriate
for judicial notice.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir. 2014). To
ascertain the scope of the preclusive effect of a federal court’s judgment issued under its
federal-question jurisdiction, we look to “the federal common law of preclusion.” Wyly v.
Weiss, 697 F.3d 131, 140 (2d Cir. 2012). Under that caselaw, a defendant seeking to assert a
res judicata defense “must show that (1) the previous action involved an adjudication on the
merits; (2) the previous action involved the plaintiffs or those in privity with them; and (3)
the claims asserted in the subsequent action were, or could have been, raised in the prior
action.” TechnoMarine, 758 F.3d at 499 (internal brackets omitted). To determine whether a
party could have raised a claim in a previous action, we consider “whether the same
transaction or connected series of transactions is at issue, whether the same evidence is
needed to support both claims, and whether the facts essential to the second were present in
the first.” Id. (citation omitted).

        For substantially the same reasons as are set forth in the District Court’s thoughtful
opinion, we conclude that the earlier adjudication of Wynn I precludes Plaintiffs’ Title VII
claims in Wynn II. Plaintiffs do not contest that the first two elements of res judicata are
satisfied, nor could they: In Wynn I, the District Court granted summary judgment to the
Union based on the merits of Plaintiffs’ discrimination claims. And, as the District Court
aptly observed in Wynn II, Plaintiffs’ claims in Wynn I and Wynn II rest on the same factual
allegations, namely: that (1) Plaintiffs worked for NYCHA as “Caretakers P,” a position
involving the application and removal of wall plaster; (2) NYCHA paid “prevailing wages” to
“Mason Helpers” (another class of NYCHA employees with different job responsibilities),
but not to Caretakers P; (3) the employees who worked as Caretakers P were predominately
Black and Hispanic, while the employees who worked as Mason Helpers were predominately



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white; and (4) the Union tacitly acquiesced to this allegedly discriminatory compensation
system.1

        Notwithstanding this factual overlap, Plaintiffs advance three arguments to support
their position that res judicata does not bar them from asserting their Title VII claims in Wynn
II. First, they contend that they could not have filed these claims in Wynn I because they did
not exhaust their administrative remedies under Title VII until after they initiated their first
suit against NYCHA and the Union. This argument is unpersuasive, however, because
failure to exhaust under Title VII in an administrative forum does not exempt a claim from
the application of res judicata in a judicial forum. See Soules v. Connecticut, Dep’t of Emergency
Servs. & Pub. Prot., 882 F.3d 52, 57 (2d Cir. 2018) (“Res judicata applies to claims pending
review in administrative proceedings.”); Woods v. Dunlop Tire Corp., 972 F.2d 36, 41 (2d Cir.
1992) (explaining that, when a plaintiff is forced to file suit before she can exhaust her
administrative remedies with respect to a Title VII claim, the plaintiff has “two available
courses . . . to avoid the sting of res judicata”).

        Second, Plaintiffs argue that res judicata does not apply because Wynn I and Wynn II
assert different theories of discrimination: whereas the former proceeded on a theory of
disparate treatment (which, Plaintiffs assert, requires proof of discriminatory intent), the
latter proceeded on a theory of disparate impact (which, Plaintiffs contend, requires no
showing of discriminatory intent). This argument also fails, however, because “claims based
upon different legal theories are barred provided they arise from the same transaction or
occurrence.” Berrios v. New York City Hous. Auth., 564 F.3d 130, 135 (2d Cir. 2009) (citation
omitted). Here, the factual allegations at issue in Wynn I and Wynn II are essentially identical,
as noted above.

        Third, and finally, Plaintiffs seek to avoid the res judicata bar by relying on the Lilly
Ledbetter Fair Pay Act, 42 U.S.C. § 2000e–5(e)(3)(A) (the “Ledbetter Act”). The Ledbetter
Act provides, inter alia, that a new Title VII claim arises each time that a plaintiff receives a



1For a particular class of NYCHA employees (e.g., Mason Helpers), the prevailing wage rate is the wage rate
earned by private-sector employees who are engaged in the same type of work. See Wynn, 730 F. App’x at 93.


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paycheck pursuant to “a discriminatory compensation decision or other practice.” 42 U.S.C.
§ 2000e–5(e)(3)(A); see also Davis v. Bombardier Transp. Holdings (USA) Inc., 794 F.3d 266, 269
(2d Cir. 2015) (“[A] compensation claim under the statute accrues not only at the time of the
discriminatory decision but also with each paycheck the victim receives.”). Plaintiffs cannot
take advantage of this accrual rule, however, because their Title VII claims against the Union
do not fall under the Ledbetter Act. As we have explained, “the plain language of the
Ledbetter Act covers compensation decisions and not other discrete employment decisions,
such as hirings, firings, promotions, and demotions.” Davis, 794 F.3d at 270 (internal
quotation marks and alterations omitted). Thus, “a change in pay, standing by itself, is not
sufficient to bring a claim within the ambit of the Ledbetter Act.” Id. Instead, “the Ledbetter
Act’s generous accrual provisions” apply to only “traditional pay-discrimination claims” that
challenge discriminatory compensation decisions. Id. at 271.

       In Wynn II, Plaintiffs seek to hold the Union liable for “acquiesc[ing]” to NYCHA’s
allegedly discriminatory compensation scheme. App’x 38. Plaintiffs’ Title VII claims are
therefore based on their labor union’s failure to advocate for higher wages, not on their
employer’s decision to pay them less than the prevailing wage rate. As a result, Plaintiffs
cannot benefit from the Ledbetter Act, which, as this Court and other circuits have
recognized, was directed “to a very specific type of claim: that the employer is ‘paying
different wages or providing different benefits to similarly situated employees.’” Poullard v.
McDonald, 829 F.3d 844, 853 (7th Cir. 2016) (quoting Daniels v. United Parcel Serv., Inc., 701
F.3d 620, 630–31 (10th Cir. 2012)); see also Davis, 794 F.3d at 271 (“Since the Ledbetter
decision specifically dealt with a pay-discrimination claim that was cognizable without regard
to other adverse employment actions, we find that the Ledbetter Act’s reference to
‘discrimination in compensation’ was to traditional pay-discrimination claims rather than to a
pay reduction that flows from another adverse employment action.”). Accordingly, the
Ledbetter Act does not save Plaintiffs’ Title VII claims from the application of res judicata.

                                              * * *




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      We have considered Plaintiffs’ remaining arguments and conclude that they are
without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk of Court




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