     Case: 18-10478      Document: 00514702730         Page: 1    Date Filed: 10/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 18-10478                                FILED
                                                                         October 30, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
DIANE MCINTYRE,

              Plaintiff - Appellant

v.

BEN E. KEITH COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-203


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
       Diane McIntyre appeals the district court’s judgment dismissing her Fair
Labor Standards Act claims as barred by res judicata. Because McIntyre’s
claims arise from the same common nucleus of operative facts as her previously
dismissed action brought under Title VII of the Civil Rights Act, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-10478
                                        I.
      In December 2016, Ms. McIntyre initiated her first lawsuit against Ben
E. Keith Company when she sued the company in federal district court for
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Complaint, McIntyre v. Ben E. Keith Co., No. 4:16-CV-1134-A, 2017 WL
4653447 (N.D. Tex. Oct. 13, 2017). In her complaint, she alleged that she began
working as a backhaul driver for Ben E. Keith Company, a food and beverage
distribution company, in June 2014. Id. ¶ 3.01. She further alleged that she
was the sole African-American female driver in her division and that she was
the only driver consistently assigned to work more than fifty-five hours a week.
Id. ¶ 3.02. When she complained about her excess hours, she was subjected
to increased levels of harassment and discriminatory conduct. Id. ¶ 3.03. In
January 2016, her supervisor began deducting wage compensation from her
paychecks, which he justified as disciplinary measures for missing a meeting
and taking leave. Id. ¶ 3.04. She attempted to report this retaliation to
company higher ups, and requested documentation of her supervisor’s ability
to deduct her pay. Id. ¶¶ 3.04–3.07. The response, however, was an email
stating that her demands were becoming “unreasonable” and “insubordinate.”
Id. ¶ 3.08. Four days later, on March 14, 2016, she was discharged. Id. ¶ 3.09.
In that action, Ms. McIntyre asserted causes of action for discrimination based
on gender and race, hostile work environment, harassment, and retaliation,
particularly in the form of improper wage deductions from her paycheck and,
ultimately, her firing. Id. at ¶¶ 4.01–6.04. The district court entered summary
judgment in favor of Ben E. Keith Company and dismissed Ms. McIntyre’s
complaint with prejudice. McIntyre, 2017 WL 4653447 at *4. We dismissed
Ms. McIntyre’s appeal of this judgment for want of prosecution. McIntyre v.
Ben E. Keith Co., No. 17-11344, 2018 WL 2215968 (5th Cir. Jan. 17, 2018).


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                                       No. 18-10478
      Ms. McIntyre was, however, undeterred by this dismissal and filed the
present action alleging violations of the Fair Labor Standards Act (FLSA). Fair
Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. In her new
complaint, she again alleges that she worked as a back haul driver for Ben E.
Keith Company and routinely worked more than forty hours a week. She
alleges for the first time, however, that Ben E. Keith Company refused to pay
her overtime or compensate her at all for these excess hours. The complaint
then goes on to allege, as in the prior action, that when she complained about
her hours as compared to her coworkers, she had her pay docked and was
ultimately fired for insubordination. The district court, sua sponte, dismissed
Ms. McIntyre’s claims on res judicata grounds pursuant to Federal Rule of Civil
Procedure 12(b)(6).
                                              II.
      Ms. McIntyre contends on appeal that the district court erred in finding
that her Civil Rights Act and FLSA claims arose out of the same set of
operative facts.      She further argues that the district court erred by not
conducting an analysis of the operative facts prior to making its sua sponte
ruling. 1 We review de novo a dismissal based on res judicata. Mowbray v.
Cameron Cty., 274 F.3d 269, 281 (5th Cir. 2001) (citing RecoverEdge L.P. v.
Pentecost, 44 F.3d 1284, 1290 (5th Cir. 1995)).
      Generally, res judicata must be pled as an affirmative defense. See Fed.
R. Civ. P. 8(c)(1). Two limited exceptions to this rule exist. The first exception
permits “[d]ismissal by the court sua sponte on res judicata grounds . . . in the
interest of judicial economy where both actions were brought before the same
court.” Mowbray, 274 F.3d at 281 (alterations in original) (quoting Boone v.
Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)). The second exception applies “where


      1   Ben E. Keith Company has not filed a response brief.
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                                  No. 18-10478
all of the relevant facts are contained in the record . . . and all are
uncontroverted.”     Id. (quoting Am. Furnitive Co. v. Int’l Accommodations
Supply, 721 F.2d 478, 482 (5th Cir. 1981)). Both McIntyre’s Civil Rights Act
and FLSA actions were brought before the same federal district court. The
relevant facts are contained in McIntyre’s complaint, which is nearly identical
to the complaint filed in the earlier action. Thus, the district court did not err
in raising the issue of res judicata sua sponte under Rule 12(b)(6).
      We now turn to the merits of the district court’s res judicata ruling. Res
judicata “bars the litigation of claims that either have been litigated or should
have been raised in an earlier suit.” Test Masters Educ. Servs., Inc. v. Singh,
428 F.3d 559, 571 (5th Cir. 2005) (citing Petro–Hunt, L.L.C. v. United States,
365 F.3d 385, 395 (5th Cir. 2004)). Res judicata applies when “(1) the parties
are identical or in privity; (2) the judgment in the prior action was rendered by
a court of competent jurisdiction; (3) the prior action was concluded by a final
judgment on the merits; and (4) the same claim or cause of action was involved
in both actions.” Id. Ms. McIntyre concedes that the parties in her Civil Rights
Act and FLSA actions are identical, the judgment in the prior action was
rendered by a court of competent jurisdiction, and the prior action was
concluded by a final judgment on the merits. She disputes the district court’s
conclusion only as to the fourth element.
      To determine whether two actions involve the same claim or cause of
action, we apply a transactional test. Id. Under that test, “a prior judgment’s
preclusive effect extends to all rights of the plaintiff with respect to all or any
part of the transaction, or series of connected transactions, out of which the
original action arose.” Id. Determining whether a grouping of facts constitutes
a “transaction” or “series of transactions” must be done “pragmatically, giving
weight to such considerations as whether the facts are related in time, space,
origin, or motivation, whether they form a convenient trial unit, and whether
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                                  No. 18-10478
their treatment as a unit conforms to the parties’ expectations or business
understanding or usage.” Id. Thus, “[t]he critical issue is whether the two
actions are based on the ‘same nucleus of operative facts.’” Id. (quoting New
York Life Insur. Co. v. Gillispie, 203 F.3d 384, 387 (5th Cir. 2000)).
      The claims in both of Ms. McIntyre’s actions related to her employment
as a back haul driver for Ben E. Keith Company and her allegations that she
worked overtime and, after she complained that her hours exceeded those of
other employees, the company retaliated against her by docking her pay and
ultimately discharging her. Ms. McIntyre’s complaint in this action omits her
prior allegations related to gender and racial discrimination, but yet contains
only a single new allegation—that she was not properly compensated for her
overtime work. All the claims in both actions, however, originate from the
virtually identical course of allegedly unlawful conduct by Ben E. Keith
Company as applied to Ms. McIntyre’s overtime work and could, and should
have been, brought in the earlier lawsuit. See Davis v. Dallas Area Rapid
Transit, 383 F.3d 309, 314 (5th Cir. 2004) (holding that claims arose from the
same series of transactions even though the “factual allegations articulated in
the two complaints differ” because “all of the claims in question originate from
the same continuing course of allegedly discriminatory conduct”). Thus, we
hold that, because Ms. McIntyre’s Civil Rights Act and FLSA actions arose
from the same nucleus of operative facts, both actions involved the same claim
and the latter, that is the claim presented in this appeal, is barred by res
judicata.
                                        III.
      Accordingly, the judgment of the district court dismissing Ms. McIntyre’s
complaint is
                                                                    AFFIRMED.


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