Alan Rodemaker v. City of Valdosta Board of Education
Citation110 F.4th 1318
Date Filed2024-08-05
Docket22-13300
Cited18 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13300
____________________
ALAN RODEMAKER,
PlaintiďŹ-Appellant,
versus
CITY OF VALDOSTA BOARD OF EDUCATION,
or, in the Alternative, VALDOSTA CITY SCHOOL DISTRICT,
WARREN LEE,
individually as Agent of the City of Valdosta Board of Education
and/or the Valdosta City School District,
LIZ SHUMPHARD,
individually as Agent of the City of Valdosta Board of Education
and/or the Valdosta City School District,
TYRA HOWARD,
individually as Agent of the City of Valdosta Board of Education
and/or the Valdosta City School District,
DEBRA BELL,
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2 Opinion of the Court 22-13300
individually as Agent of the City of Valdosta Board of Education
and/or the Valdosta City School District,
KELISA BROWN,
individually as Agent of the City of Valdosta Board of Education
and/or the Valdosta City School District,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:21-cv-00076-HL
____________________
Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Coach Alan Rodemakerâs contract as the head football coach
at Valdosta High School was not renewed by the Valdosta Board
of Education in 2020. That result followed from a vote in which all
four of the white members of the Board voted to renew, but all five
of the black members voted not to renew. Rodemaker believes
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22-13300 Opinion of the Court 3
that all of the black members of the Board voted not to renew his
contract because he is white. 1
In 2020 Rodemaker sued the five black members of the
Board of Education in their individual capacities in federal court
under 42 U.S.C. §§ 1981, 1983 (Rodemaker I). He sought monetary
damages from them. His lawsuit did not name as parties the Board
itself or any of the white members of the Board. The district court
denied the individual Board membersâ motions to dismiss on qual-
ified immunity grounds, but we reversed that denial after conclud-
ing that Rodemaker had failed to state a claim against them. The
result was judgment for the defendant board members in Rode-
maker I.
Then came Rodemaker II in 2021. The complaint in it named
the same black board members as before, but this time it also in-
cluded the Board itself as a defendant. And it did not claim that the
alleged racial discrimination was a violation of § 1981 but of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The
complaint in Rodemaker II includes more detailed factual allegations
than the one in Rodemaker I, and is based on a different anti-discrim-
ination statute, but the crux of both complaints is the same. Both
1 The complaint in Rodemaker II uses the racial identifiers âblackâ and
âAfrican Americanâ interchangeably. It also uses the term âwhite,â except for
three occasions on which âCaucasianâ is used. For internal consistency, we
will use the terms âblackâ and âwhiteâ when referring to race. And we will
follow the predominate practice in the complaints of not capitalizing either
the âbâ or the âw,â except at the beginning of sentences.
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4 Opinion of the Court 22-13300
complaints claim that the Board and its black members discrimi-
nated against Rodemaker based on his race when his contract was
not renewed. He sought monetary damages in both lawsuits.
In the present lawsuit, Rodemaker II, the Board moved for
summary judgment, contending that because of the judgment in
Rodemaker I res judicata barred the claim against the defendants in
this lawsuit. The district court granted the motion after determin-
ing that the Board was in privity with the board member defend-
ants because they had been acting as its agents when they decided
not to renew Rodemakerâs contract and that, despite the different
legal labels for the claims, Rodemaker I and II involve the same cause
of action. We agree.
I . BACKGROUND2
A. RODEMAKER I
1. Allegations in Rodemaker I
Rodemaker filed his first lawsuit, Rodemaker I, in federal
court in April 2020. It named as defendants the five black members
of the Valdosta Board of Education â Warren Lee, Liz
Shumphard, Tyra Howard, Debra Bell, and Kelisa Brown â in
2 In its motion for summary judgment based on res judicata, the Board
relied on the historical facts alleged in the Rodemaker I and Rodemaker II com-
plaints, and in this appeal Rodemaker has not raised any issue with that reli-
ance or with any of those historical facts. We will go along with their approach
in recounting the facts, even though this is an appeal from the grant of sum-
mary judgment and not from the grant of a motion to dismiss.
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22-13300 Opinion of the Court 5
their individual capacities. It claimed racial discrimination in viola-
tion of 42 U.S.C. §§ 1981 and 1983 against all five defendants, seek-
ing monetary damages and attorneyâs fees.
The Rodemaker I complaint alleged that Rodemaker had
been the head football coach at Valdosta High School in Georgia,
where he once won the State 6A Championship and twice made it
to the State 6A quarterfinals. He had also been a gym teacher at
Valdosta and had âaccepted a school contract with the Valdosta
Board of Education on an annual basis for each of the last ten
years.â As both a football coach and teacher, his âreviews and rep-
utation [were] exemplary.â
In January 2020, the contracts of 151 teachers and coaches
were up for annual renewal by the Valdosta Board of Education.
According to the complaint, the racial makeup of the Board âhad
recently changedâ from five white members and four black mem-
bers to four white members and five black members.
When it came time to renew the teachersâ and coachesâ con-
tracts, board member Lee moved to consider Rodemakerâs con-
tract separately from the 150 other contracts up for renewal. All
150 other contracts were renewed. But by a 5-4 margin along racial
lines, the Board voted not to renew Rodemakerâs contract. None
of the board members who voted against renewing Rodemakerâs
contract provided any reason for their decision.
The Board held a second vote on Rodemakerâs contract in
February 2020, but the Board again voted along racial lines not to
renew the contract. At the meeting, white board member Kelly
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Wilson stated that âthe actions of the School Board with regard to
Coach Rodemaker were not only improper, but probably illegal.â
Rodemaker contended that his contract was not renewed because
the black board members wanted to hire a black football coach. He
claimed that âthe conspiracy to non-renew Coach Rodemaker oc-
curred in illegal meetingsâ with the black board members.
2. Procedural History of Rodemaker I
All five defendants filed motions to dismiss, contending that
they were entitled to qualified immunity. The district court denied
the motions to dismiss, and the defendants filed an interlocutory
appeal of the order. In June 2021 we reversed the denial of the de-
fendantsâ motions to dismiss, holding that the complaint failed to
state a claim. See Rodemaker v. Shumphard, 859 F. Appâx 450, 453
(11th Cir. 2021). We remanded the case to district court for dismis-
sal. See id.
B. RODEMAKER II
While Rodemaker I was pending before the district court,
Rodemaker filed two charges of discrimination with the United
States Equal Employment Opportunity Commission (EEOC), one
against the Valdosta Board of Education and one against the Val-
dosta City School District. And while the Rodemaker I defendantsâ
interlocutory appeal was pending, the EEOC issued a right to sue
letter for both charges. See generally Forehand v. Fla. State Hosp. at
Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996) (describing the
EEOCâs right to sue process).
1. Allegations in Rodemaker II
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Ten days after we remanded Rodemaker I to the district
court, Rodemaker filed the complaint that forms the basis of this
lawsuit, Rodemaker II. It named as defendants the City of Valdosta
Board of Education, as well as the five black board members. 3 It
contained a race discrimination claim under Title VII against the
Board, a race discrimination claim under Title VII against the board
members, and a conspiracy claim against the board members. It
sought compensatory and punitive damages as well as attorneyâs
fees under 42 U.S.C. § 2000e-5(k) and O.C.G.A. § 13-6-11. The
claim against the board members under Title VII alleged that they
âacted as agentsâ of the Board when they voted not to renew his
contract.
The factual allegations in the Rodemaker II complaint are ma-
terially identical to those in Rodemaker I, albeit slightly more de-
tailed. What follows is a recounting of those allegations.
Rodemaker was the head football coach at Valdosta High
School, where he once won the State 6A Championship and twice
made it to the State 6A quarterfinals. He was also a gym teacher at
Valdosta and in both positions was an employee of the Board. As
both a football coach and teacher, his âreviews and reputation were
3 The complaint does not clearly state in what capacity the five board
members were being sued. Rodemaker contends that he sued them in their
official capacity. But because he appeals only the grant of summary judgment
against the Board, and not the dismissal of the claims against the individual
board members, the capacity in which he sued the board members in Rode-
maker II is not relevant.
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8 Opinion of the Court 22-13300
exemplary,â and there were no complaints or any evidence of mis-
conduct in his personnel file.
The Board was required to consider for renewal on a yearly
basis Rodemakerâs employment. It had renewed his contract every
year from 2010 through 2019. But before the vote on renewal of
Rodemakerâs contract for the 2020â2021 school year, the racial
makeup of the Board had changed from a majority-white board to
a majority-black board, on which five of the nine board members
were black. The five black board members were Warren Lee, Liz
Shumphard, Tyra Howard, Debra Bell, and Kelisa Brown. They
âparticipated in public meetings where they discussed their intentâ
to vote to non-renew Rodemakerâs contract in order to replace him
with a black head coach. The black board members also texted and
emailed among themselves âregarding their concerted plan to vote
to non-renew Coach Rodemaker as the Head Football Coach.â
And black board member Lee had made comments in the past that
âValdosta High School needed a head football coach of colorâ and
had insisted that job applications submitted to the Board should in-
dicate whether the applicant was black or white.
For the 2020 school year, the Valdosta City Schools Super-
intendent had recommended that the Board renew Rodemakerâs
contract for another year. Generally, once the Superintendent rec-
ommended renewal of a contract, the Board would âvote on all of
the Superintendent[â]s recommendations for rehire in one vote.â
But at the January 2020 board meeting, âLee requested that
the recommendation to renew Coach Rodemaker[â]s football
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coaching contract be considered separatelyâ from all other recom-
mendations. The Board then separated the personnel list into two
groups, an A list and a B list. All other school system personnel
were on the A list, and Rodemaker was the only employee on the
B list.
The Board members discussed the renewal matters in pri-
vate during an executive session. The Board then returned to a
public session to vote. A white board member moved to renew
Rodemakerâs employment contract, but that motion was defeated
by a 4-5 vote along racial lines. The five black board members who
voted to non-renew Rodemakerâs contract did not explain why
they did so.
In response to public outcry, the Board planned to recon-
sider the non-renewal of Rodemakerâs contract at a February 2020
meeting. At the meeting, Lee moved to strike reconsideration of
Rodemakerâs contract from the agenda, but the motion was de-
feated by a vote of 4-5, with Lee, Shumphard, Howard, and Brown
voting to remove consideration of the matter from the agenda,
while Bell voted with the four white board members to leave it on
the agenda. The Board then heard comments from the public
about whether it should renew Rodemakerâs contract. Five black
members of the community spoke against renewing Rodemakerâs
contract. They made comments: âurg[ing] the black members of
the School Board to âstand togetherââ; reminding those members
they were ââput thereâ by black votesâ; and âimpl[ying] that black
football players had been used by the white establishment . . .
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10 Opinion of the Court 22-13300
without regard to the well-being of the black players.â Seven peo-
ple, some of them black and some of them white, spoke in support
of renewing Rodemakerâs contract.
After hearing the public comments, the Board again dis-
cussed the vote in private. Once the board members returned to
the public forum to vote, a white board member again moved to
renew Rodemakerâs contract. And again the motion was denied,
with the board members voting entirely along racial lines. The
board members who voted against renewing Rodemakerâs con-
tract did not give a reason for their decision. One of the white
board members later âconfirmed that race was a factorâ in the vote.
The black board members sought to replace Rodemaker
with a black coach. But after they were unable to find a black can-
didate, the Board voted along racial lines to hire âcontroversial
football coach Rush Pro[p]st.â After Propst was removed as coach
in April 2021 for illegally recruiting players, the Board hired a black
man as interim head coach.
2. Procedural History of Rodemaker II
The board members moved to dismiss Rodemakerâs com-
plaint on the merits. A couple months later, the Board filed a mo-
tion for summary judgment, arguing that Rodemakerâs claims
against it are barred by res judicata. Specifically, the Board argued
that it was in privity with the board members sued in Rodemaker I
because they were its agents and the causes of action in the two
cases are the same. It also argued (for the first time in its reply brief)
that it was in privity with the board members because â[t]he School
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Board controlled the litigation [in Rodemaker I]. Counsel for the
Board had defended all five Individual Defendant Board Members
and necessarily consulted with the School Board throughout the
course of the prior litigation,â i.e., during Rodemaker I.
The district court granted the board membersâ motions to
dismiss and entered judgment for them, a judgment which is not
contested in this appeal. It also granted the Boardâs motion for
summary judgment, which is contested in this appeal.
The district court granted summary judgment for the Board
on res judicata grounds after determining that it was in privity with
the board members because their votes not to renew Rodemakerâs
contract were cast as agents of the Board. Privity existed, the court
reasoned, because the board members acted as agents of the Board
in Rodemaker I, the Board and the board members shared a âcom-
monality of interests for purposes of defending against [Rode-
makerâs] claim,â and because Rodemaker did ânot dispute [the
Boardâs] assertion that the School Board provided counsel for the
[board members] in the previous action and exerted substantial
control over the defense.â The court also determined that Rode-
maker I and II shared the same cause of action because the claims in
both arose out of the same nucleus of operative facts.
This is Rodemakerâs appeal of the district courtâs entry of
judgment in favor of the Board in Rodemaker II based on res judi-
cata.
II. THE ELEMENTS OF RES JUDICATA AND THE
APPLICABLE STANDARD OF REVIEW FOR IT
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Res judicata prevents plaintiffs from bringing claims related
to prior decisions when âthe prior decision (1) was rendered by a
court of competent jurisdiction; (2) was final; (3) involved the same
parties or their privies; and (4) involved the same causes of action.â
TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co., 959 F.3d 1318,
1325 (11th Cir. 2020).
In their briefing, both parties contend that we should âre-
view de novo a district courtâs determination of res judicata,â but
that âwhether a party is in privity with another for preclusion pur-
poses is a question of fact that is reviewed for clear error.â EEOC v.
Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). As it turns
out, itâs a little more cloudy than that because there is an intra-cir-
cuit conflict in our decisions about the standards of review for priv-
ity determinations.
At least a half dozen of our decisions review questions of
privity only for clear error. See ADT LLC v. NorthStar Alarm Servs.,
LLC, 853 F.3d 1348, 1351 (11th Cir. 2017) (âWhether a party is in
privity with another party is a question of fact that we review for
clear error.â); CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333,
1340 (11th Cir. 2017) (âPrivity is a factual question which should
not be reversed unless its determination is clearly erroneous.â)
(quoting Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1472
(11th Cir. 1986)) (cleaned up); Baloco v. Drummond Co., Inc., 767 F.3d
1229, 1246 (11th Cir. 2014) (â[W]hether a party is in privity with
another for preclusion purposes is a question of fact that is re-
viewed for clear error.â) (quotation marks omitted); Griswold v.
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Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010)
(â[W]hether a party is in privity with another for preclusion pur-
poses is a question of fact that is reviewed for clear error.â) (quota-
tion marks omitted); Pemco Aeroplex, 383 F.3d at 1285 (â[W]hether
a party is in privity with another for preclusion purposes is a ques-
tion of fact that is reviewed for clear error.â); Hart, 787 F.2d at 1472
(âA district courtâs determination as to whether interrelated corpo-
rations are in privity with each other is a factual question which
should not be reversed unless its determination is clearly errone-
ous.â); Astron Indus. Assocs., Inc. v. Chrysler Motors Corp., 405 F.2d
958, 961 (5th Cir. 1968) (âThis determination of identity between
litigants for the purpose of establishing privity is a factual question,
and the District Court should not be reversed unless its determina-
tion is clearly erroneous.â). 4
But some of our other decisions apply de novo review to all
elements of res judicata, including privity. See Herman v. S.C. Natâl
Bank, 140 F.3d 1413, 1424 n.17 (11th Cir. 1998) (âApplication of res
judicata presents questions of law reviewed de novo.â); NAACP v.
Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (âA district courtâs con-
clusions as to res judicata are conclusions of law, and are thus re-
viewable de novo by this Court.â); id. at 1561 (âThe question of
whether sufficient privity exists to warrant application of res judi-
cata is a question of law.â) (citing Sw. Airlines Co. v. Tex. Intâl
4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), we adopted as binding precedent all decisions of the former Fifth Circuit
handed down before October 1, 1981.
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14 Opinion of the Court 22-13300
Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977)) (explaining that âfed-
eral cases have recognized that âprivityâ denotes a legal conclu-
sionâ); McDonald v. Hillsborough Cnty. Sch. Bd., 821 F.2d 1563, 1564
(11th Cir. 1987) (âThe district courtâs determination regarding the
availability of res judicata as a defense is a conclusion of law. Thus,
whether or not res judicata is available is totally reviewable.â) (cita-
tion omitted); see also Consumer Fin. Prot. Bureau v. Ocwen Fin. Corp.,
30 F.4th 1079, 1083 n.1 (11th Cir. 2022) (stating, in a case where
privity was not at issue, that â[b]ecause barring a claim on the basis
of res judicata is a determination of law, our review is de novoâ)
(cleaned up); Maldonado v. U.S. Attây Gen., 664 F.3d 1369, 1375 (11th
Cir. 2011) (stating that â[b]ecause res judicata determinations are
pure questions of law, we review them de novo,â but where privity
was not at issue) (quotation marks omitted); In re Piper Aircraft
Corp., 244 F.3d 1289, 1295 (11th Cir. 2001) (explaining that â[a]
courtâs application of res judicata presents questions of law re-
viewed de novo,â but not reaching the privity question); Sewell v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 94 F.3d 1514, 1517 (11th
Cir. 1996) (asserting that â[t]he application of res judicata principles
to [the plaintiffâs] claims constitutes a pure question of law which
this court reviews de novo,â but where privity was not at issue).
The conflict is also reflected one place removed in opinions
discussing whether privity is a question of fact or a question of law.
Compare Sellers v. Nationwide Mut. Fire Ins. Co., 968 F.3d 1267, 1275â
76 (11th Cir. 2020) (stating in an issue preclusion case involving the
application of Alabama law that â[w]hether parties were in privity
is a factual question that should be decided in the first instance by
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the district courtâ) (quotation marks omitted), with Riddle v. Cerro
Wire & Cable Grp., Inc., 902 F.2d 918, 921â22 (11th Cir. 1990) (ex-
plaining that when determining if res judicata bars a subsequent
action, itâs âa question of lawâ whether the plaintiff has âsufficient
identity of interests . . . so that she may be treated as a party for
preclusion purposesâ).
Were we deciding the issue as one of first impression, we
might well hold that privity is a mixed question of law and fact. See
Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982) (explaining
that a mixed question of law and fact is a âquestion[] in which the
historical facts are admitted or established, the rule of law is undis-
puted, and the issue is whether the facts satisfy the statutory stand-
ardâ). And for mixed questions of law and fact, we normally review
the underlying factual determinations for clear error, while review-
ing de novo the district courtâs application of facts to law. See In re
Am.-CV Station Grp., Inc., 56 F.4th 1302, 1309 (11th Cir. 2023) (âBe-
cause these determinations are mixed questions of law and fact, we
review them de novo.â); R.L. v. Miami-Dade Cnty. Sch. Bd., 757 F.3d
1173, 1187 (11th Cir. 2014) (â[M]ixed questions of law and fact we
review de novo.â); Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir.
2004) (âWe review de novo the district courtâs resolution of ques-
tions of law and of mixed questions of law and fact.â) (alteration
adopted) (quotation marks omitted); see also McNair v. Campbell,
416 F.3d 1291, 1297 (11th Cir. 2005) (âThe district courtâs factual
findings are reviewed for clear error, while mixed questions of law
and fact are reviewed de novo.â).
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16 Opinion of the Court 22-13300
But the question is not before us as a matter of first impres-
sion. We must follow precedent embodied in published opinions.
And in situations like this one where there is conflicting precedent,
an intra-circuit conflict, we follow the precedent set out in our
âwell-established approach to resolving conflicts in our precedent.â
Washington v. Howard, 25 F.4th 891, 899 (11th Cir. 2022) (quotation
marks omitted). It prescribes that we first try to find a âbasis of
reconciliation from the apparently conflicting decisions and then
apply that reconciled rule.â Id. at 900 (quotation marks omitted).
If that is not possible, then âwe must follow the earliest precedent
that reached a binding decision on the issue.â Id. (quotation marks
omitted).
Here, the application of two completely different standards
of review cannot be reconciled. De novo review is not clear error
review, nor is there any other apparent basis for reconciling the
two lines of precedent. So we apply our earliest binding precedent
on the issue. As far as we can tell, that earliest precedent is the 1968
pre-split Fifth Circuit decision in Astron Industrial Associates, Inc. v.
Chrysler Motors Corp., which held that âprivity is a factual question,
and the District Court should not be reversed unless its determina-
tion is clearly erroneous.â 405 F.2d at 961 (citing Towle v. Boeing
Airplane Co., 364 F.2d 590, 593 (8th Cir. 1966)). Accordingly, we
apply clear error review to determine if the board members are in
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22-13300 Opinion of the Court 17
privity with the Board, and we review de novo the district courtâs
determination of the remaining res judicata elements. 5
III. DISCUSSION
The preclusive effect of prior judgments in federal court is
governed by âuniform federal rules of res judicata.â Taylor v.
Sturgell, 553 U.S. 880, 891 (2008) (alterations accepted) (quotation
marks omitted). The purpose behind the doctrine of res judicata is
to âpreclud[e] parties from contesting matters that they have had a
full and fair opportunity to litigateâ and to âprotect against the ex-
pense and vexation attending multiple lawsuits, conserve judicial
resources, and foster reliance on judicial action by minimizing the
possibility of inconsistent decisions.â Id. at 892 (alterations
adopted) (quotation marks omitted).
The party asserting res judicata bears the burden of
âshow[ing] that the later-filed suit is barred.â In re Piper Aircraft
Corp., 244 F.3d at 1296. Thatâs the Board, which contends that the
district court properly granted summary judgment in its favor be-
cause Rodemaker II is barred by res judicata based on Rodemaker I.
There is no dispute that two of the four elements of res judicata are
met: (1) a court of competent jurisdiction, (2) rendered a final deci-
sion. See Rodemaker I, 859 F. Appâx at 453.
The other two res judicata elements are the disputed ones:
whether the two lawsuits involve (3) the same parties or ones in
5 For whatever it is worth, we do not think that it would change the
result of this appeal if we were reviewing de novo instead of for clear error.
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18 Opinion of the Court 22-13300
privity with them and (4) the same causes of action. Rodemaker
contends that the defendants in Rodemaker I, the board members
sued in their individual capacities, are not in privity with the re-
maining defendant in Rodemaker II, the Board. He also argues that
the causes of action in the two cases are different. We will take up
those issues in that order.
A. PRIVITY
Privity is not a concept whose boundaries have been staked
out with mathematical precision. It has been somewhat circularly
defined as the ârelationship between one who is a party of record
and a nonparty that is sufficiently close so a judgment for or against
the party should bind or protect the nonparty.â Hunt, 891 F.2d at
1560 (quotation marks omitted); see also Sw. Airlines Co., 546 F.2d at
95 (â[T]he term privity in itself does not state a reason for either
including or excluding a person from the binding effect of a prior
judgment, but rather it represents a legal conclusion that the rela-
tionship between the one who is a party on the record and the non-
party is sufficiently close to afford application of the principle of
preclusion.â) (footnote omitted); Pemco Aeroplex, 383 F.3d at 1286
(explaining that âprivityâ is âa flexible legal termâ that âcompris[es]
several different types of relationships,â and generally applies
âwhen a person, although not a party, has his interests adequately
represented by someone with the same interests who is a partyâ).
More helpful is the non-exhaustive list of facts or factors the
Supreme Court has provided that favor a finding of privity:
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22-13300 Opinion of the Court 19
(1) the nonparty agreed to be bound by the litigation
of others; (2) a substantive legal relationship existed
between the person to be bound and a party to the
judgment; (3) the nonparty was adequately repre-
sented by someone who was a party to the suit; (4)
the nonparty assumed control over the litigation in
which the judgment was issued; (5) a party attempted
to relitigate issues through a proxy; or (6) a statutory
scheme foreclosed successive litigation by nonliti-
gants.
Griswold, 598 F.3d at 1292 (citing Taylor, 553 U.S. at 893â95); see
Taylor, 553 U.S. at 893 & n.6 (explaining that this list âis meant only
to provide a frameworkâ for consideration of privity issues, ânot to
establish a definitive taxonomyâ).
Rodemaker argues that because he sued the board members
in their individual capacity in Rodemaker I, they cannot be in privity
with the Board in this case. That brings up the difference between
individual capacity and official capacity claims. Claims against in-
dividuals in their official capacities âgenerally represent only an-
other way of pleading an action against an entity of which an officer
is an agent,â and are âin all respects other than name, to be treated
as a suit against the entity.â Kentucky v. Graham, 473 U.S. 159, 165â
66 (1985) (quotation marks omitted). Thatâs because an award of
damages in an official capacity suit is paid by the government entity
itself, so that entity is the real party in interest in that type of law-
suit. Id. at 166. A lawsuit against an individual in his individual
capacity, by contrast, âcan be executed only against the officialâs
personal assets,â meaning that the government itself is not
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20 Opinion of the Court 22-13300
responsible for any damages award from the suit (although, of
course, it may voluntarily pay them to relieve its official of the bur-
den of personally doing so). Id.
If the government is on the hook for damages in a lawsuit
against an official in his official capacity, it should not later have to
be on the hook for damages again based on the same conduct in a
different lawsuit where it is a named defendant. So it makes sense
that â[g]enerally, a government official sued in his or her official
capacity is considered to be in privity with the government, but a
government official sued in his or her individual capacity is not.â
Lozman v. City of Riviera Beach, 713 F.3d 1066, 1075 n.7 (11th Cir.
2013); cf. OâConnor v. Pierson, 568 F.3d 64, 71 (2d Cir. 2009) (holding
that members of a board of education sued in their official capacity
were in privity with the Board). Because the board members were
sued in their individual capacity in Rodemaker I, official-capacity-
and-entity privity is not present here. But that does not mean that
another type of, or basis for, privity does not exist here.
The Supreme Court has told us that there are other ways for
privity to exist. See Taylor, 553 U.S. at 893â95. The question is
whether the relationship between the parties in question was âsuf-
ficiently close so a judgment for or against the [individuals] should
bind or protect the [Board].â Hunt, 891 F.2d at 1560 (quotation
marks omitted). And where, as here, the five board members were
able to take the action they took because they controlled the Board,
the law slaps a privity label on the relationship and treats what the
members did as action by the Board. When one partyâs actions are
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22-13300 Opinion of the Court 21
legally another partyâs actions, those two parties have the kind of
substantive legal relationship that establishes privity. See Harmon
Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir. 1999) (âPrivity
exists when two parties to two separate suits have a close relation-
ship bordering on near identityâ) (quotation marks omitted).
Contrast the relationship between the board member de-
fendants and the Board to the relationship between a police officer
and the police department for which he works. While performing
his official duties, the police officer acts as a representative of the
police department, but he cannot reasonably be said to be acting as
the department, at least not when he is sued in his individual ca-
pacity. He canât be said to be the department because he does not
control the department. But here, the five board members, when
performing their official duties and acting as a majority of the
board, do control the Board; as the controlling majority, they are
acting as the Board. Their collective decision not to renew Rode-
makerâs contract was a decision of the Board and resulted in the
non-renewal of the contract.
Our decision about this is consistent with the precedent of
other circuits. See Schuster v. Martin, 861 F.2d 1369, 1373 (5th Cir.
1988) (holding that members of a hospitalâs board of trustees were
in privity with the hospital under Mississippi law because â[a]ll of
the allegations made by [the plaintiff] refer to actions taken by [the
board members] as members of [the hospitalâs] board or executive
committee. Moreover, only these entities could have taken the ac-
tions complained ofâ); Licari v. City of Chicago, 298 F.3d 664, 667 (7th
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22 Opinion of the Court 22-13300
Cir. 2002) (holding that members of a policemenâs retirement
board sued in their individual capacity were in privity with the
Board itself under Illinois law because âa government and its offic-
ers are in privity for purposes of res judicataâ and the plaintiff âdoes
not allege any action taken against him by the [board members] .
. . that is separate and distinct from any action taken by the Boardâ);
Harmon, 191 F.3d at 903 (finding privity where two parties to two
separate suits âhave a close relationship bordering on near iden-
tityâ) (quotation marks omitted).
The district court did not err at all, much less clearly err, in
determining that the Board is in privity with the five of its nine
members who were sued in their individual capacity in Rodemaker
I. 6
B. SAME CAUSE OF ACTION
6 Rodemaker also argues that the district court erred in considering
the Boardâs argument, raised for the first time in its reply brief, that it is in
privity with the board members because, even though it wasnât a party in
Rodemaker I, it âcontrolled the litigation.â Cf. Taylor, 553 U.S. at 895 (explain-
ing that âa nonparty is bound by a judgment if she assumed control over the
litigation in which that judgment was renderedâ) (alteration adopted) (quota-
tion marks omitted). We need not consider that issue because it does not af-
fect our reasoning or conclusion. There was privity regardless of whether the
Board controlled the litigation on the defense side in Rodemaker I.
And for the same reason, we need not consider the Boardâs argument
based on Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498 (11th Cir. 1990),
that it is in privity with the board members because they acted as its agents in
voting to non-renew Rodemakerâs contract.
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22-13300 Opinion of the Court 23
Rodemaker also contends that the district court erred in con-
cluding that Rodemaker I and Rodemaker II involve the same causes
of action because (1) §§ 1981 and 1983 are diďŹerent statutes with
causation standards diďŹerent from those of Title VII, and (2) he
sued diďŹerent parties in Rodemaker II than he did in Rodemaker I.
We are not persuaded.
Determining whether two cases involve the same cause of
action for the purposes of res judicata is an inquiry âconcerned
with the substance, and not the form, of the [two] proceedings.â
Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1270 (11th Cir. 2002).
We ask whether the claims âarise[] out of the same nucleus of op-
erative facts, or [are] based upon the same factual predicate.â TVPX
ARS, Inc., 959 F.3d at 1325 (quotation marks omitted). Causes of
action share a nucleus of operative fact if âthe same facts are in-
volved in both cases, so that the present claim could have been ef-
fectively litigated with the prior one.â Lobo v. Celebrity Cruises, Inc.,
704 F.3d 882, 893 (11th Cir. 2013) (quotation marks omitted). But
if âfull relief [was not] available in the ďŹrst action,â res judicata does
not bar the second action. TVPX ARS, Inc., 959 F.3d at 1325 (quota-
tion marks omitted).
The claims in both Rodemaker lawsuits grew out of the same
nucleus of operative fact and were based on the same factual pred-
icate: the allegedly racially discriminatory decision not to renew
Rodemakerâs employment contract. While there were more fac-
tual allegations and speciďŹcs about the non-renewal of the contract
in the second lawsuit, the non-renewal was at the center or core of
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24 Opinion of the Court 22-13300
both complaints. Factual allegations do not need to be identical to
arise out of the same nucleus of operative fact. The nucleus is the
core, not the core and every layer, crack, and ďŹssure.
That the Rodemaker I complaint contained claims under
§§ 1981 and 1983 while the Rodemaker II complaint contained
claims brought under Title VII is not relevant to the inquiry. See
Lobo, 704 F.3d at 893 (holding that Seamanâs Wage Act claim and
Labor Management Relations Act claims arose from the same nu-
cleus of operative fact because the plaintiďŹ alleged the same facts
as the basis for both claims). Res judicata âapplies not only to the
precise legal theory presented in the prior case, but to all legal the-
ories and claims arising out of the same nucleus of operative fact.â
Hunt, 891 F.2d at 1561. Because legal theories are diďŹerent from
operative facts, a diďŹerent legal theory does not necessarily mean a
diďŹerent nucleus of operative fact.
Nor is the fact that the diďŹerent claims may have been sub-
ject to diďŹerent standards of proof relevant. See Davila v. Delta Air
Lines, Inc., 326 F.3d 1183, 1188 (11th Cir. 2003) (explaining that âthe
fact that the elements of proof in the context of [the second claim]
diďŹer from those at issue in [the ďŹrst claim] is not a basis on which
we may hold res judicata to be inapplicableâ).
Rodemaker argues that he would have had to add the Board
as a party to Rodemaker I to bring his Title VII claim in that lawsuit
because Title VII claims cannot be brought against individuals. See
Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.
2000). From that he argues that the two complaints involved
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22-13300 Opinion of the Court 25
diďŹerent causes of action. But there was nothing preventing him
from naming the Board as a party in Rodemaker I. See Fed. R. Civ.
P. 20(a)(2)(B) (allowing a plaintiďŹ to join any party as a defendant if
âany question of law or fact common to all defendants will arise in
the actionâ). And, in any event, the identity of the defendant
against whom claims are brought is not relevant to the inquiry
about the same cause of action element: whether the claims share
a common nucleus of operative fact. See Lobo, 704 F.3d at 893. Sim-
ilarity of parties is covered in the privity element of res judicata,
and as we explained earlier, the privity requirement is met here. See
supra at 22.
In the district court, Rodemaker argued that he could not
have brought his Title VII claim in Rodemaker I because the EEOC
had not yet issued him his right to sue letters. Thus he contended
that Rodemaker I could not be the same cause of action as Rodemaker
II because âfull relief [was not] available inâ Rodemaker I. TVPS ARS,
Inc., 959 F.3d at 1325 (quotation marks omitted). The district court
rejected that argument, and properly so. We have held that the fact
a plaintiďŹ did not have when he ďŹled his ďŹrst lawsuit a right to sue
letter that was necessary for the claim he raised in his second law-
suit does not prevent it from being barred by res judicata. See Jang
v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000) (explaining
that âplaintiďŹs may not split causes of action to bring, for example,
state law claims in one suit and then ďŹle a second suit with federal
causes of action after receiving a âright to sueâ letterâ). Rodemaker
argues that Jang is inapplicable âbecause the critical element for the
application of res judicata â identity of parties â existedâ in Jang
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26 Opinion of the Court 22-13300
but does not exist here. But that attempted distinction fuses the
privity element and the same cause of action element. They are
distinct elements, and neither one requires that parties be identical
for res judicata to apply. Rodemakerâs attempt to distinguish Jang
doesnât work.
Rodemaker I and Rodemaker II involved the same causes of ac-
tion. That means all four elements of res judicata are met, and the
district court properly granted summary judgment in favor of the
Board in Rodemaker II.
III. CONCLUSION
Res judicata is concerned with substance over form. Claims
that are based on the same issues and involve the same entities
should generally be litigated together. In the present lawsuit, Rode-
maker seeks to relitigate a dispute already decided in Rodemaker I.
He had a âfull and fair opportunity to litigateâ the dispute in that
ďŹrst lawsuit. Taylor, 553 U.S. at 892 (quotation marks omitted).
Our application of res judicata to bar his attempted do-over in this
second lawsuit carries out the purposes of res judicata, which are
to âconserve judicial resourcesâ and âminimiz[e] the possibility of
inconsistent decisions.â Id. (alteration adopted) (quotation marks
omitted).
AFFIRMED.