     Case: 16-20538        Document: 00514045002          Page: 1     Date Filed: 06/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                        No. 16-20538                                 FILED
                                                                                 June 22, 2017

GUADALUPE A. WELSH,                                                             Lyle W. Cayce
                                                                                     Clerk
                Plaintiff - Appellant

v.

FORT BEND INDEPENDENT SCHOOL DISTRICT,

                Defendant - Appellee




                     Appeal from the United States District Court
                          for the Southern District of Texas


Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.*
HAYNES, Circuit Judge:
      In this employment dispute, the district court granted summary
judgment in favor of Defendant Fort Bend Independent School District on the
ground that res judicata barred all of Plaintiff Guadalupe Welsh’s claims.
Because it appears that some of Welsh’s claims were not mature at the time of
filing her previous lawsuit, we VACATE and REMAND for the district court to
determine what claims remain in light of this opinion.




      *   District Judge of the Western District of Texas, sitting by designation.
    Case: 16-20538     Document: 00514045002      Page: 2   Date Filed: 06/22/2017



                                  No. 16-20538
                                        I.
      Plaintiff Guadalupe A. Welsh is a teacher at Defendant Fort Bend
Independent School District (“FBISD”). She filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging discrimination and
retaliation on August 15, 2012. Welsh amended that charge on June 19, 2014,
stating that the discrimination and retaliation was ongoing, and she received
her right-to-sue letter on June 30, 2014.
      On September 26, 2014, Welsh filed a lawsuit against FBISD in the
district court for Fort Bend County (Welsh I). In Welsh I, Welsh alleged that
she “was passed over for jobs as an administrator because of her sex, female,
her national origin, Hispanic, and her age, which is over 40.” She further
alleged that she was retaliated against for filing her 2012 EEOC charge.
Accordingly, she brought claims for discrimination, hostile work environment,
and retaliation under Chapter 21 of the Texas Labor Code.
      On December 16, 2014, FBISD filed a plea to the jurisdiction in Welsh I,
wherein FBISD maintained, inter alia, that Welsh’s claims were barred by the
statute of limitations because she filed her lawsuit more than two years after
she filed her charge. The state district court granted the plea to the jurisdiction
and dismissed Welsh’s claims in Welsh I on January 9, 2015.
      Later that same month, Welsh filed another charge with the EEOC,
alleging discrimination and retaliation for incidents occurring between April 3,
2014, and December 19, 2014. Welsh received her right-to-sue letter, and on
May 12, 2015, she filed this case against FBISD in the Southern District of
Texas (“Welsh II”). In Welsh II, Welsh brought claims against FBISD for
discrimination under Title VII and the ADEA. In support of these claims,
Welsh alleged the following facts:




                                        2
    Case: 16-20538      Document: 00514045002        Page: 3    Date Filed: 06/22/2017



                                    No. 16-20538
          (1) On April 3, 2014, she was placed under a “Teacher in
              Need of Assistance” (“TINA”) Plan for reasons that
              were fabricated;
          (2) On April 29, 2014, she received a Professional
              Development and Appraisal System, Summative
              Annual Report (“PDAS”), which stated that she had
              been placed on a TINA Plan and FBISD “would not
              remove the disparaging memoranda”;
          (3) On July 9, 2014, Welsh requested a letter of
              recommendation from the principal but received no
              response;
          (4) During “the Fall semester of 2014,” FBISD
              deliberately failed to provide her with accommodation
              information for her students as a means of fabricating
              another reprimand against her;
          (5) On September 16, 2014, Welsh filed a grievance
              requesting that the TINA Plan be removed from her
              file, that all mentions of the grievance be removed
              from her file, and that the school comply with PDAS
              standards; and
          (6) On December 19, 2014, Allison Pike “made
              humiliating remarks” to Welsh in front of others.
Welsh further alleged that these actions constituted retaliation for her having
filed a charge with the EEOC. 1
      FBISD moved for summary judgment on the grounds that, due to Welsh
I, all of the claims in Welsh II were barred by res judicata. The district court
granted FBISD’s motion and denied Welsh’s subsequent motion for
reconsideration. Welsh timely appealed.
                                           II.
      We review the application of res judicata de novo. Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). Because Welsh I



      1    Only the question of res judicata is before us so we express no opinion on the
sufficiency of these facts to support the claims alleged.
                                           3
     Case: 16-20538       Document: 00514045002          Page: 4     Date Filed: 06/22/2017



                                       No. 16-20538
occurred in Texas state court, we apply Texas res judicata law. See Jones v.
Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996). Res judicata
is an affirmative defense, Mowbray v. Cameron Cty., 274 F.3d 269, 281 (5th
Cir. 2001), and thus the movant bears the burden of establishing that its
requirements are satisfied, Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986).
                                             III.
       Texas law has three requirements to invoke res judicata, the third of
which is that the claims in the second action were raised or could have been
raised in the first action. See Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed.
Sav., 837 S.W.2d 627, 629 (Tex. 1992); Tex. Water Rights Comm’n v. Crow Iron
Works, 582 S.W.2d 768, 771–72 (Tex. 1979). 2 In this case, we must decide
whether this requirement is satisfied where some of the events underlying the
claims asserted in the second action had not yet occurred at the time of filing
the first action. Moreover, all of the claims asserted in the second action were
unexhausted at the time of the first action. We thus must consider whether
claims that were not mature at the time of filing Welsh I nonetheless are barred
by res judicata for failure to raise them in that case.
       Examining Texas and other relevant caselaw, 3 as well as secondary
sources, we conclude that Welsh was not required to include in Welsh I claims



       2 On appeal, Welsh challenges the first requirement, a prior final judgment on the
merits. See Jones, 82 F.3d at 1338. Because there are no extraordinary circumstances, Welsh
has waived appellate consideration of this issue by not raising it in the district court until
her motion for reconsideration. See AG Acceptance Corp. v. Veigel, 564 F.3d 695, 700 (5th
Cir. 2009); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
       3 FBISD urges that Davis v. Dallas Area Rapid Transit, 383 F.3d 309 (5th Cir. 2004),
supports its argument that all of the claims underlying Welsh II could have been asserted in
Welsh I. But Davis does not answer the question presented in this case for several reasons.
First, Davis involved federal res judicata law, not Texas res judicata law. 383 F.3d at 312
n.1, 313. Second, in Davis, all of the barred conduct underlying the second lawsuit occurred
before the filing of the first lawsuit. See id. at 314; see also id. at 316 (“Because the barred
                                               4
     Case: 16-20538        Document: 00514045002          Page: 5     Date Filed: 06/22/2017



                                        No. 16-20538
that were not yet mature at the time of filing Welsh I. Thus, such claims would
not be barred.
       The Texas Supreme Court has determined that claims could not have
been litigated in a prior suit (so claim preclusion would not apply) where there
existed some legal hurdle to asserting them in that prior suit. See Getty Oil
Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992); Cf. Browning v.
Navarro, 887 F.2d 553, 558 (5th Cir. 1989) (“If the court rendering judgment
lacked subject-matter jurisdiction over a claim or if the procedural rules of the
court made it impossible to raise a claim, then it is not precluded.”). Moreover,
Texas courts have refused to apply res judicata to claims that were not yet
mature at the time of the first lawsuit. E.g., Collins v. Guinn, 102 S.W.3d 825,
832 (Tex. App.—Texarkana 2003, pet. denied) (“Res judicata will not bar a
plaintiff’s recovery in a subsequent lawsuit absent a showing that the same
claims were mature at the time of the prior judgment.”); El Paso City-County
Health & Envtl. Dist. v. Bernal, No. 08-00-00349-CV, 2001 WL 1169915, at *4
(Tex. App.—El Paso Oct. 4, 2001, no pet.) (not designated for publication)
(“[B]ecause the TCHRA provided the exclusive remedy for Bernal’s sexual
harassment, age discrimination, and retaliation complaints, he could not have
litigated them in his first lawsuit because he had not yet exhausted his
administrative remedies.”); Hernandez v. Del Ray Chem. Int’l, Inc., 56 S.W.3d
112, 116 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“For res judicata to




claims arose from the same nucleus of operative fact as the claims in Davis I and they predate
that action, Appellants were on notice to include those claims in Davis I.” (emphasis added)).
Here, however, not all of the conduct underlying Welsh II preceded the filing of Welsh I. See
also ASARCO, L.L.C. v. Montana Res., Inc., --- F.3d ----, No. 16-40682, 2017 WL 2407451, at
*5 (5th Cir. June 2, 2017) (analyzing federal res judicata law and distinguishing Davis on the
grounds that all of the conduct in Davis occurred prior to the first suit). Third, the plaintiffs
in Davis had filed their EEOC charge before filing the first lawsuit. See Davis, 383 F.3d at
315. Here, as it relates to the allegations in Welsh II, no charge was filed before the filing of
Welsh I.
                                               5
     Case: 16-20538       Document: 00514045002         Page: 6    Date Filed: 06/22/2017



                                      No. 16-20538
apply, a claim must be in existence at the time suit is filed, and cannot merely
be of prospective anticipated claim.”); Valero Transmission Co. v. Wagner &
Brown, II, 787 S.W.2d 611, 614 (Tex. App.—El Paso 1990, writ dism’d by agr.)
(determining claim was not barred where a claim “did not materialize” until
after the first case was tried); Reserve Life Ins. Co. v. Shelton, 415 S.W.2d 281,
285 (Tex. Civ. App.—Austin 1967, writ dism’d) (“Since appellee had three
separate and distinct causes of action, maturing at different times and sued on
separately as the claims accrued, there is no rule of practice requiring appellee
to amend his pleadings to introduce into one lawsuit all causes of action, and
judgment in the first cause will not constitute res judicata as to the subsequent
suits.”); Norton v. Humble Oil & Ref. Co., 227 S.W.2d 860, 862 (Tex. Civ. App.—
Dallas 1950, no writ) (“Obviously appellee could not by diligence or otherwise
have anticipated in its first suit an issue or action not then in existence and
which could only arise out of future acts and conduct of the adverse party.”).
       A century-old Texas Supreme Court case is also instructive. See Ben C.
Jones & Co. v. Gammel Statesman Pub. Co., 100 Tex. 320, 99 S.W. 701 (Tex.
1907). In Ben C. Jones, the Texas Supreme Court held that a claim for breach
of a continuing contract is not barred by a previous suit on the same contract
where the causes of action in the second suit accrued after the filing of the first
suit. Id. at 703. In so holding, the Texas Supreme Court rejected the very
argument that FBISD makes here—that a party must amend its petition to
assert additional causes of action as new facts occur. 4 Id. (“It is true that under
our system of practice the plaintiffs might have amended their petition and
have introduced into that suit all causes of action which had accrued under



       4 FBISD does not argue that, by actually amending her petition to make a few
corrections in Welsh I, Welsh was required to include new causes of action embracing all
conduct that occurred as of the date of the amendment. Accordingly, any such issue is clearly
abandoned, and we do not address it. See In re Repine, 536 F.3d 512, 518 n.5 (5th Cir. 2008).
                                             6
    Case: 16-20538     Document: 00514045002     Page: 7   Date Filed: 06/22/2017



                                  No. 16-20538
that contract, but there is no rule of practice that required that they should do
so.”). The Second Restatements of Judgments, on which the Texas Supreme
Court has previously relied, see Barr, 837 S.W.2d at 631, also indicates that
amendment is not required,       RESTATEMENT (SECOND) OF JUDGMENTS § 26
cmt. g (1982) (“A judgment in an action for breach of contract does not normally
preclude the plaintiff from thereafter maintaining an action for breaches of the
same contract that consist of failure to render performance due after
commencement of the first action.” (emphasis added)).
      We also find instructive Texas’s compulsory counterclaim rule, 5 under
which a party must assert as a counterclaim any action arising out of the same
transaction as the claim so long as the action is mature at the time of filing the
pleading. TEX. R. CIV. P. 97(a); see Ingersoll-Rand Co. v. Valero Energy Corp.,
997 S.W.2d 203, 207 (Tex. 1999), disagreed with on other grounds by In re J.B.
Hunt Transp., Inc., 492 S.W.3d 287, 292 (Tex. 2016). “A claim which either
matured or was acquired by the pleader after filing his pleading may be
presented as a counterclaim by amended pleading.” TEX. R. CIV. P. 97(d)
(emphasis added); see also Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship,
323 S.W.3d 203, 216–17 (Tex. App.—El Paso 2010, pet. denied) (determining
res judicata did not apply where “[t]he prior lawsuit was filed prior to the
breach of contract cause of action becoming mature”); Weiman v. Addicks-
Fairbanks Rd. Sand Co., 846 S.W.2d 414, 420 (Tex. App.—Houston [14th Dist.]
1992, writ denied) (determining that claims that were not mature at the time
of filing the first lawsuit were not barred by the compulsory counterclaim rule
from being brought in a second lawsuit).




      5  The Texas Supreme Court has noted the similarity between the compulsory
counterclaim rule and res judicata. See Barr, 837 S.W.2d at 630–31.
                                        7
     Case: 16-20538        Document: 00514045002          Page: 8     Date Filed: 06/22/2017



                                        No. 16-20538
       Based on these principles, we reject FBISD’s argument that Welsh was
required to amend her petition in Welsh I to include claims that were not
mature at the time of filing Welsh I. 6 We specifically reject the idea that every
time something happens after a lawsuit is filed the plaintiff must immediately
amend or risk losing that claim forever. In the employment context, FBISD’s
proposed rule would require a plaintiff to repeatedly amend her petition and
then stay her initial lawsuit to file charges with the EEOC for conduct that
arises during that lawsuit. Such a rule is not feasible where a plaintiff remains
employed and is subject to discrimination maturing after the filing date.
       For these reasons, we hold that the only claims in Welsh II that are
barred under res judicata are those that were mature at the time that Welsh
filed her petition in Welsh I. The parties have not briefed this issue under this
framework (instead proposing contrary rules for claim preclusion dates not
supported by Texas caselaw). For that reason and because at least some facts
supporting Welsh’s alleged claims clearly were not extant at the time Welsh I
was filed such that a claim could not have been mature based upon those facts,
we conclude that the question of which claims survive in this case is best left
in the first instance to the district court on remand.
       VACATED and REMANDED.




       6   Although not determinative, we note that many of our sister circuits have
determined that federal res judicata law does not bar claims based on facts that occurred
after the filing of the first lawsuit. E.g., Marcel Fashions Grp., Inc. v. Lucky Brand
Dungarees, Inc., 779 F.3d 102, 108–09 (2d Cir. 2015); Gillig v. Nike, Inc., 602 F.3d 1354, 1363
(Fed. Cir. 2010); Lundquist v. Rice Mem’l Hosp., 238 F.3d 975, 978 (8th Cir. 2001); Manning
v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992); see also Male v. Tops Markets, LLC,
354 F. App’x 514, 515 (2d Cir. 2009) (res judicata did not apply to a claim for post-termination
retaliation based on events that occurred after the filing of the first lawsuit); Cf. Munoz v.
Aldridge, 894 F.2d 1489, 1495 (5th Cir. 1990) (“Manuel Munoz’s individual claims in this case
cannot be barred by his prior litigation of individual claims based on earlier, different alleged
instances of discrimination.”).
                                               8
