~JS 44 (Rev. 3/99)

e e Case 3:04-cv-01892CIVDoILcuCmOenVt 1ER SFiHleEd E08T/30/2004 Page 1 of 6

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules ofcourt. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

DEFENDANTS
JEFFERSON DENTAL CLINICS, P.A.

(b) County of Residence of First Listed Plaintiff _ _ _ _ _ _ _ _ _ __ (EXCEPT IN U.S. PLAINTIFF CASES)
304CV1892- N

(c) Attorney's (Finn Name, Address, and Telephone Number)
RONETTA J. FRANCIS, SENIOR TRIAL ATTORNEY EEOC-Dallas District Office 207 South Houston, 3,d Floor Dallas, Texas 75202 (214) 253-2756

II. BASIS OF JURISDICTION (place an "X" in One Box Only)

"'I U.S. Government PlaIntiff

o 3 Federal Question
(U.S. Government Not a Party)

III. CITIZENSHIP OF
(For Diversity Cases Only)
PTF DEF
Citizen ofThis State 0 I 0 I

and One Box for Defendant)
PTF DEF
Incorporated or Principal Place 0 4 0 4 of Business In This State

o 2 U.S Government
Defendant

o 4 Diversity
(Indicate Citizenship of Parties In Item III)

Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 05 of Business In Another State

Citizen or Subject of a 0 3 0 3 Foreign Nation

o 6 06

Forei Co nt

IV. NATURE OF SUIT (Place an "X" in One Box Only)

CONTRACT

TORTS

FORFEITUREIPENALTY

BANKRUPTCY

OTHER STATUTES

0 110 Insurance

PERSONAL INJURY

PERSONAL INJURY 0

0 120 Marine

0 3 10 Airplane

0 362 Personal Injury-

0

0 130 Miller Act

0 3 15 Airplane Product

Med. Malpractlce 0

0 I 40 Negotiabl~ Instrument

Liability

0 365 Personal Injury -

0 150 Recovery of Overpayment 0 320 Assault, Libel &

Product Liability

0

& Enforcement of Judgment

Slander

0 368 Asbestos Personal 0

0 151 Medicare Act

0 330 Federal Employers'

Injury Product

0

0 152 Recovery of Defaulted

Liability

Liability

0

Student Loans

0 340 Marme

(Excl. Veterans)

0 345 Manne Product

0 153 Recovery of Overpayment

Liability

of Veteran's Benefits

0 350 Motor Vehicle

PERSONAL PROPERTY

o 370 Other Fraud

0

o 371 Truth m Lending

o 380 Other Personal

0 160 Stockholders' Suits 0 190 Other Contract

0 355 Motor Vehicle
Product Liability

Property Damage
0 385 Property Damage

0

0 195 Contract Product Liability 0 360 Other Personal injury

Product Liability

0

REAL PROPERTY
0 210 Land Condemnation 0 220 Foreclosure

CIVIL RIGHTS
0 441 Voting
X 442 Employment

PRISONER PETITIONS 0

0 510 Motions to Vacate

Sentence

0

0 230 Rent Lease & Ejectment 0 443 Housing!

Habeas Corpus.

0 240 Torts to Land

AccommodatIOns 0 530 General

0

0 245 Tort Product liability

0 444 Welfare

0 535 Death Penalty

0 290 All Other Real Property 0 440 Other Civil Rights 0 540 Mandamus & Other 0

0 550 Civil Rights

0 555 Prison Conditlon

610 Agnculture 620 Other Food & Drug 625 Drug Related Seizure
of Property 21 USC 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational
SafetylHealth 690 Other

0122 Appeal 28 USC 158
0123 Withdrawal 28 USC 157
PROPERTY RIGHTS
[B20 Copynghts [B30 Patent [B40 Trademark

LABOR

SOCIAL SECURITY

710 FarrLabor Standards [B61 HlA (1395ft)

Act

[B62 Black Lung (923)

720 LaborlMgmt RelatIOns [B63 DIWCIDIWW (405(g»

[B64 SSID Title XVI

730 LaborlMgmt Reporting [B65 RSI (405(g»

& Disclosure Act

740 Railway Labor Act

FEDERAL TAX SUITS

790 Other Labor Lltigatlon

CB70 Taxes (U S Plaintiff or Defendant)

791 Empl Ret. Inc. Security Act

CB71 IRS-Third Party 26 USC 7609

o 400 State ReapportIOnment o 410 Antltrust o 430 Banks and Bankmg o 450 CommercelICC Rates/etc o 460 DeportatIOn o 470 Racketeer Influenced and
Corrupt OrganizatIOns
o 810 Selectlve SefVIce o 850 Secuntles/Commodilies/
Exchange
o 875 Customer Challenge
12 USC 3410
o 891 Agncultural Acts o 892 Econolllic StabilizatIOn Act o 893 EnVlronmental Matters o 894 Energy A1locatlon Act o 895 Freedom of
informatlon Act
o 900 Appeal of Fee
Determmation Under Equal
Access to Justice
o 950 Constitutionality of
State Statutes
o 890 Other Statutory Actions

v. ORIGIN
.X I Original Proceeding

(PLACE AN "X" IN ONE BOX ONLY)

D 2 Removed from State Court

o 3 Remanded from Appellate Court

Transferred from

o

4 Reinstated or

0 5

another district (specify)

Reopened

D 6 Multidistrict Litigation

Appeal to District Judge from
o 7 Magistrate Judgment

CAUSE OF ACTION (Cite the U S Civil Statute under which you aremmg and write brief statement of cause.

VI.

Do not cite JunsdictlOnai statutes unless diverSity.)

This cause ofaclion IS brought pursuant to Title VII ofCivil Rights Act ofJ964, amended, and Title I of Civil Rights Act of 1991 to correct unlawful employment practices on the basiS of sex and to

proVlde appopnate relief to Carol Cantu, Lmda Houshoulder, Heather Sooter and Esmerlda Junenez. who subject to a sexually hostile work environment based upon their sex, female, by termmating.

VII. REQUESTED IN

D CHECK IF THIS IS A CLASS ACTION DEMANDS

COMPLAINT:

UNDER F.R.C.P. 23

VIII. RELATED CASE{S)

(See instructions):

IF ANY

mDGE

SIGNAT~_O_RD_ __

CHECK YES only if demanded in complaint:

JURY DEMAND:

}(Yes 0 No

DOCKET NUMBER

RECEWT# _______ AMOUN _ _ _ _ _ __ APPLYING IFP _ _ _ _ _ _ __

JUDGE _________ MAG JUDGE _ _ _ _ _ _ _ __

J

Case 3:04-cv-01892 Document 1 Filed 08/30/2004 Page 2 of 6
U.S. DISTRICT COURT
NORTHERND~STlUCTOFTEXAS

\

FILED

IN THE UNITED STATES DISTRICT CO RT

'-,

FOR THE NORTHERN DISTRICT OF TE S

AUG 3 0 2004

DALLAS DIVISION

CL!~i)ISTRICTCO~T

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

JEFFERSON DENTAL CLINICS, P.A.,

)

)

Defendant.

)

------------------------------------~)

Deputy
CIVIL ACTION NO.
S 04 CV1892- N
COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION

This an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of

the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and to

provide relief to Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez. The

Commission alleges that Defendant, Jefferson Dental Clinics, P.A., (hereafter "Defendant"),

violated Title VII by subjecting Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda

Jimenez to a sexually hostile work environment based upon their sex, female, by terminating

Carol Cantu, Linda Housholder, and Heather Sooter from their employment in retaliation for

their opposition to the unlawful sexual harassment, and by constructively discharging Esmeralda

Jimenez.

JURISDICTION AND VENUE

1.

Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §451, 1331, 1337,

1343, 1345. This action is authorized and instituted pursuant to Section 706(1)(f) and (3) of the

COMPLAINT

1

Case 3:04-cv-01892 Document 1 Filed 08/30/2004 Page 3 of 6

Civil Rights Act of 1964, as amended, ("Title VII"), 42 U.S.C §2000e-5(f) (1) and (3), and Section 102 ofthe Civil Rights Act of 1991,42 U.S.c. § 1981A.
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Texas.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission ("Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964, as amended and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. §2000e-5(f)(1) and (3). 4. At all relevant times, Defendant has continuously been and is now doing business in the state of Texas and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez filed charges with the Commission alleging violations of Title VII of the Civil Rights Act of 1964, as amended, by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least March 2002, the Defendant has engaged in unlawful employment practices at its corporate office, located in Dallas, Texas, in violation of Section 703(a) (1) and

COMPLAINT

2

Case 3:04-cv-01892 Document 1 Filed 08/30/2004 Page 4 of 6

704(a) of Title VII, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a) by subjecting Carol Cantu, Linda

Housholder, Heather Sooter and Esmeralda Jimenez to a sexually hostile work environment,

discriminating against them because of their sex, by terminating Carol Cantu, Linda Householder

and Heather Sooter in retaliation for their opposition to the unlawful sexual harassment, and by

constructively discharging Esmeralda Jimenez.

8.

The result ofthe foregoing practices has been to deprive Carol Cantu, Linda

Housholder, Heather Sooter and Esmeralda Jimenez of equal employment opportunities because

of their sex.

9. The unlawful employment practices complained of in paragraph 7 above were

intentional.

10. The unlawful employment practices complained of in paragraph 7 above were

done with malice or with reckless indifference to the federally protected rights of Carol Cantu,

Linda Housholder, Heather Sooter and Esmeralda Jimenez.

PRAYERFOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining the Defendant, its officers, successors,

assigns, and all person in active concert or participation with it, from engaging in any

employment practice which discriminates on the basis of sex, or which facilitates, condones or

encourages employees to create a sexually hostile environment.

B. Grant a permanent injunction enjoining the Defendant, its officers, successors,

assigns, and all persons in active concert or participation with it, from engaging in any
employment practice which discriminates in violation of Title vn and, specifically, from

COMPLAINT

3

Case 3:04-cv-01892 Document 1 Filed 08/30/2004 Page 5 of 6
subjecting its employees to retaliatory treatment in violation of Title VII.
e. Order the Defendant to institute and carry out policies, practices, and programs
which provide equal employment opportunities for Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez and eradicate the effects of its past and present unlawful unemployment practices.
D. Order the Defendant to make whole Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez by providing appropriate back pay with prejudgment interest in amounts to be determined at trial, front pay and pecuniary damages, including out-of-pocket expenses, and other affirmative relief necessary to eradicate the effects of the Defendant's unlawful employment practices, including, but not limited to rightful place reinstatement of Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez under such terms and conditions that will allow them to work free from sexual harassment, discrimination and retaliation.
E. Order the Defendant to make whole Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, in amounts to be determined at trial.
F. Order the Defendant to pay Carol Cantu, Linda Housholder, Heather Sooter and Esmeralda Jimenez punitive damages for its malicious conduct or reckless indifference described in paragraphs 7 and 10 above, in an amount to be determined at trial.

COMPLAINT

4

Case 3:04-cv-01892 Document 1 Filed 08/30/2004 Page 6 of 6

G. interest.
H.

Grant such further relief as the Court deems necessary and proper in the public Award the Commission its costs in this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its Complaint.

Respectfully submitted,

ERIC S. DREIBAND General Counsel

GWENDOLYN Y. REAMS

~D~G: e e~ ral Couns~ el

R

_
BERT

A.~ANINO

_o _ _ _

Regional Attorney

Oklahoma State Bar No. 011782
d5m~

SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
~~

Senior Trial Attorney Virginia State Bar No. 39886

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 253-2746 Fax No. (214) 253-2749

COMPLAINT

5

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

EQUAL EMPLOYMENT

§

OPPORTUNITY COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

JEFFERSON DENTAL CLINICS, P.A., §

§

Defendant.

§

Civil Action No. 3:04-CV-1892-N

MEMORANDUM OPINION AND ORDER

Before the Court are the motion of Heather Sooter, Carol Cantu, Linda Housholder,

and Esmeralda Jimenez (the “Intervenors”) to intervene, filed on January 4, 2005, Defendant

Jefferson Dental Clinic, P.A.’s (“JDC”) Motion for Leave to File Its First Aemnded Answer,

filed on March 9, 2005, and JDC’s motion for summary judgment, filed on March 11, 2005.

The disposition of each of these motions turns on the question whether a related state court

judgment in favor of JDC and against Intervenors precludes the present action. Because res

judicata bars Intervenors’ Title VII claim, the Court grants the motion to amend and denies

the motion to intervene. But because the Court finds no privity between Intervenors and the

EEOC, it denies the motion for summary judgment.

I. THE TWO CASES

JDC, which operates 11 dental clinics in the Dallas area, employed Intervenors at its

headquarters until April 2003. On June 2, 2003, each of the Intervenors filed a Charge of

Discrimination with the EEOC a gainst JDC, alleging sexual harassm ent, constructive

MEMORANDUM OPINION AND ORDER – PAGE 1

discharge, and retaliation. An EEOC investigation concluded there was reasonable cause to

believe JDC subjected Intervenors to sexual harassm ent, a sexually hostile work

environment, constructive discharge and retaliation in violation of Title VII. The EEOC

brought the present suit August 30, 2004, alleging that JDC violated Title VII by subjecting

all Intervenors to a sexually hostile work environm ent, terminating Intervenors Cantu,

Housholder, and Sooter in retaliation for opposition to sexual harassment, and constructively

discharging Jimenez for the same reason. The EEOC seeks injunctive relief against JDC as

well as compensatory and punitive damages for Intervenors.

In the m eantime, Intervenors sued JDC in Texas state court. On June 19, 2003,

approximately two weeks after filing their EEOC Charges, Intervenors brought suit against

JDC and two of its em ployees, Kadri Cumur and David Alameel. Their Original Petition

alleged that Cumur in particular engaged in an alarm ing pattern of conduct that included

offensive touching, interrogating Intervenors about their sexual predilections and partners,

leering at them, commenting on their clothing, makeup, and figures, and much other similiar

behavior. The suit asserted claims for intentional infliction of emotional distress, wrongful

discharge, and negligent retention. Intervenors did not assert claim

s for sexual

discrimination or sexual harassment under Title VII or comparable state law. The wrongful

discharge claim is nevertheless com parable to a c laim of retaliation for m aking a sexual

discrimination charge, which is forbidden under 42 U.S.C. § 2000e-3(a). Intervenors

amended their petition on Decem ber 10, 2003 and again on March 12, 2004, each tim e

without adding sexual discrimination or sexual harassment claims.

MEMORANDUM OPINION AND ORDER – PAGE 2

When the EEOC brought the present suit in fe deral court, defendant Cumur filed a plea in abatement with the state court, arguing that “[t]he present case should . . . be abated to avoid the possibility of inconsistent judgments and double-recovery arising fromthe same conduct.” In the same motion he sought a continuance due to the then-recent death of his father in a foreign country. Intervenors opposed this motion and soon thereafter requested a trial date as soon as possible. The state court denied the plea in abatement and set the case for trial on November 15, 2004.
The EEOC involved itself in the state court action. EEOC lawyers participated when Intervenors, JDC, and the other defendants attended a court-ordered emdiation on September 22, 2004. The EEOC explains that it participated in order to “ma[ke] an effort to resolve its outstanding Title VII case against the defendan,tand to obtain such injunctive and other nonmonetary relief . . . that the charging parties woudl not have been able to secure in their own right . . . .” The mediation failed to resolve any claims. EEOC lawyers attended voir dire and trial in state court. They took notes and regularly conferred with Intervenors’ counsel, but did not sit at counsel table or otherwise officially participate in the trial. Intervenors’ counsel turned over to the EEOC docum ents that it had obtained through discovery in the state suit. The EEOC has resisted producing these docum ents to JDC in the present case, stating they are protected “under the principle of joint representation, the attorney-client privilege, and the attorney work product privilege.”
The state court trial lasted one week. JDC prevailed on all claims either by directed verdict or jury verdict. Counsel for Intervenors reports tha t the claim for intentional infliction of emotional distress, in particular, did not go to the jury because “the state court MEMORANDUM OPINION AND ORDER – PAGE 3

found that our clients’ claims sounded in sex discrimination, over which the state court had no jurisdiction.” The state court directed a verdict on this claim pursuant to Hoffman – La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004), which held that intentional infliction of emotional distress is a “gap-filler” tort thadt oes not overlap with statutory causes of action for sexual harassment.
On January 4, 2005, Intervenors m oved to inte rvene in the present case. Their proposed complaint asserts a Title VII sex discrim ination claim against JDC and seeks damages. JDC opposes the motion to intervene, asserting that Intervenors claims are barred by res judicata. Subsequently JDC moved to amend its complaint to assert res judicata as a defense, and moved for summary judgment on res judicata grounds, arguing that the EEOC should be considered in privity with Intervenors.
II. THE COURT GRANTS THE MOTION TO AMEND The Court should freely grant leave to amend unless there is undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by amendments previously allowed, undue prej udice to the opposing party by virtue of the allowance of the amendment, or futility of amendment. Ynclan v. Dep’t of the Air Force, 943 F.2d 1388, 1391 (5th Cir. 1991). JDC am ended its answer prom ptly after the state suit concluded, and the Court decides below that the amendment is not futile as to Intervenors. Accordingly, the Court grants the motion to amend.
MEMORANDUM OPINION AND ORDER – PAGE 4

III. THE COURT DENIES THE MOTION TO INTERVENE AS FUTILE BECAUSE INTERVENORS’ CLAIMS ARE BARRED BY RES JUDICATA Federal Rule of Civil Procedure 24(a) provides for intervention of right when a statute confers an unconditional right to intervene. 42 U.S.C. § 2000e-5(f)(1) confers such a right upon Intervenors, as the “persons aggrieved” in an action that the EEOC brings. However, the purpose of intervention is to assert a claim or defense. FED. R. CIV. P. 24(c). Because the Court concludes that the prior judgment bars present Intervenors’ Title VII claim, their intervention is futile. Accordingly, the Court denies the motion to intervene.
A. Texas Res Judicata Law Applies The Full Faith and Credit Act, 28 U.S.C. §1738, requires federal courts to apply state res judicata law to determine the claim preclusive effect of state court judgm ents. United States ex rel. Laird v. Lockheed Martin Eng’g & Science Servs. Co,.336 F.3d 346, 357 (5th Cir. 2003). Accordingly, the Court applies Texas law to determ ine whether Intervenors’ claim is precluded. There are a number of ways in which state res judicata law can preclude a federal claim. For the present question, it is enough that a claim is precluded in federal court if it would be precluded in state court. See Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 367, 373 (1996) (“The [Full Faith and Credit] Act thus directs all courts to treat a state court judgment with the same respect that it would receive in the courts of the rendering state.”).
B. Intervenors’ Title VII Suit Would Be Barred in a Texas Court and Is Barred in This Court
Under Texas law, res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in MEMORANDUM OPINION AND ORDER – PAGE 5

the prior action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996) (citing Barr v. Resolution Trust Corp ., 837 S.W.2d 627, 628 (Tex. 1992)). It is a m ixed question of fact and law that the trial court determines. Ex parte Myers, 68 S.W.3d 229, 231 (Tex. App. – Texarkana 2002, no pet.).
The party asserting res judicata has the burden to plead and prove its eleemnts. Brown v. Zimmerman, 160 S.W.3d 695, 702 (Tex. App. – Dallas 2005, no pet.). These are: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with the m; and (3) a second action based on the sam e claims as were raised or could have been raised in the first action. Id. The question whether claims “could have been raised” in the first action assumes the party’s “exercise of diligence” to combine the claims, even if the timetables for resolving them does not completely overlap. See Getty Oil Co. v. Ins. Co. of N. Am. , 845 S.W.2d 794, 799 (Tex. 1993) (plaintiff, with diligence, could have brought claim in prior suit, though it was contingent upon outcom e of other claims in that suit). It is presently undispuetd that JDC obtained a final judgment on the state law claims from a court of com petent jurisdiction. There is sim ilarly no doubt that the second element is satisfied, as JDC was a defendant in the prior lawsuit. The third element requires more discussion.
In its 1992 Barr decision, the Texas Suprem e Court resolved prior confusion a nd affirmed the “transactional” approach to determining when an action is “based on the same claims” as those of a prior action. 867 S.W.3d at 630-31. Under Barr, “a subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit.”Id. at 631. Furthermore, MEMORANDUM OPINION AND ORDER – PAGE 6

the “determination of what constitutes the subject matter of the suit . . . requires an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action.” Id. at 630; cf. Hogue v. Royse City, Te xas, 939 F.2d 1249, 1253 (5th Cir. 1991) (applying Texas law and citing Flores v Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 777 (5th Cir. 1984)) (“‘a different cause of action’ is one that proceeds not only on a sufficiently different legal theory but also on a different factual footing . . . that is, an action that can be maintained even if all the disputed factual issues raised in the plaintiff’s original complaint are conceded in the defendant’s favor”). The inquiry also considers judicial efficiency and convenience. See 837 S.W.2d at 630. Where two claims depend upon proof of the same central facts and would forma “convenient trial unit, whereas separate lawsuits would require significant duplication of effort,” judgment on one of the claims precludes a second suit on the other. 837 S.W.2d at 631; see Laird, 336 F.3d at 359 (applying Texas law).
Under this test, the present claims concern the same subject matter as the state court suit. Intervenors’ state law petition de tails conduct that any educated layperson would identify as sexual harassment. It does so with such thoroughness and precision that the state court held the intentional infliction of emotional distress claim could not go forward because it sounded in sex discrimination, though no sex discrimination claim was before the court. The factual overlap between Intervenors’ prior petition and present c omplaint is almost complete, such that obvious inefficiencies would arise from trying the Title VII claim in a separate court from the other claims. Finally, if the disputed facts in the original petition
MEMORANDUM OPINION AND ORDER – PAGE 7

were assumed to be decided against Intervenors as required under Flores, they could not
prevail on their Title VII claim.
It is equally apparent that Intervenors could have brought all their claims together in
state court through exercise of diligence. State courts have jurisdiction over Title VII clasim,
Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990), and the EEOC was required
to issue a right to sue letter upon Intervenors’written request at any time after November 30, 2003. See 29 C.F.R. § 1601.28(a)(1)(2005)1. Intervenors could have approached the 180 day
delay in a number of ways. They could have delayed bringing their state law claism, or could
have sought (or simply acquiesced to) abatement. Alternately, they could have added the
Title VII claim by amendment. See Barr, 837 S.W.2d at 631 (discussing amendment as a
method for diligently avoiding claim splitting). Intervenors did none of these things. It is
undisputed that Intervenors ha d a two year statute of lim itations to bring their state law
claims, but they brought themonly months after their terminations and two weeks after filing
their EEOC Charge. In addition, Intervenors resisted state court defendant Cumur’s plea in
abatement and requested an early trial date. The m ost convincing explanation for
Intervenors’ haste appears in the supplem ental brief: “Because of Plaintiffs’ abrupt
1 “When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued in the charge to which the rqeuest relates is filed against the respondent other than a government, governmental agency or political subdivision, the Com mission shall promptly issue such notice as described in § 1601.28(e) to all parties, at any time after the expiration of one hundred eighty (180) days from the date of filing of the charge with the Commission . . . .”
Section 1601.28(e) provides that the notice of right to sue shall include “[a]uthorization to the aggrieved person to bring a civil action under title VII or the ADA . . . within 90 days from receipt of such authorization.” MEMORANDUM OPINION AND ORDER – PAGE 8

terminations by Defenda nt, Plaintiffs suffered im mediate and severe financial problem s needing expedited relief to m eet their mortgage and other obligations.” While the Court sympathizes with Intervenors’ financial problems, the hope for a quick partial recovery is not an acceptable excuse under Texas law for subjecting defendants and courts to redundant proceedings.
Intervenors claim that in fact they diligently sought to bring their Title VII claim in state court, but they do not persuade the Court. Intervenors could have addressed their ostensible concern for statutes of limitations by seeking abatement, and there is no evidence that limitations actually threatened any of their claims. And while Intervenors claimto have sought right to sue letters, the evidence they present does not support a conclusion that they made a diligent effort to do so. Intervenors dem onstrate that they requested a right to sue letter from the Texas Commission of Human Rights for related state law claims on July 16, 2004, eight months after the 180 day deadline pa ssed. They claim the TCHR denied this request on the grounds that the EEOC had not issued a right to sue letter. Intervenors also claim – for the first time in the supplemental brief – that they “requested a Right to Sue letter from the EEOC, but the EEOC declined, stating that the y were still investigating the allegations.” This claim is not credible, b ecause Intervenors fail to reference any written evidence in its support. See 29 C.F.R. § 1601.28(a)(1) (2005) (“When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued . . . ”) (em phasis added). Intervenors have worked closely with the EEOC, and regulations require the EEOC to issue a right to sue letter after 180 days upon written request. In the absence of evidence
MEMORANDUM OPINION AND ORDER – PAGE 9

or explanation for the EEOC’s purported refusal to issue the right to sue letter, the Court concludes that Intervenors did not diligently seek such a letter from the EEOC.
The court has determined that with diligence, Intervenors’ Title VII claimcould have been litigated together with a prior claimbased on the same factual subject matter. Texas res judicata law therefore bars it. Accordingly, the Court denies the omtion to intervene as futile.
IV. JDC IS NOT ENTITLED TO SUMMARY JUDGMENT ON RES JUDICATA BECAUSE THE EEOC WAS NOT IN PRIVITY WITH THE INTERVENORS
Summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). JDC m oves for summary judgment solely on res judicata grounds. Because res judicata bars the relitigation of a claimas a matter of law, see Barr, 837 S.W.2d at 628-29 & n.1, no material issues of fact can remain if the Court holds a claim precluded.
As stated above, the elements for res judicata in Texas are: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Amstadt, 919 S.W.2d at 652. Here again, there is no dispute that the underlying state suit was a prior finajludgment on the merits by a court of competent jurisdiction. The other two issues are in dispute. The Court concludes that the EEOC is not in privity with Intervenors, which m akes it unnecessary to make a determination as to the third element.
MEMORANDUM OPINION AND ORDER – PAGE 10

Texas treats privity as an exception to the general rule that a person is not bound by a judgment in a suit to which it was not a party. Amstadt, 919 S.W.2d at 652. The purposes of the exception are to ensure that a defendant is not “twice vexed” for the same acts, and to achieve judicial economy by precluding those who have had a fa ir trial from relitigating claims. Id. at 653. Texas cases consistently state that no prevailing definition of privity exists that automatically applies to all cases involving res judicata, and that determination of who are privies requires careful examination of the circumstances of each case. See Brown 160 S.W.3d at 703; Amstadt, 919 S.W.2d at 653; Getty Oil, 845 S.W.2d at 800.
Nonetheless, the courts cite a list of standard circum stances that establish pr ivity: “People can be in privity in at least three ways(:1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the main action.” Amstadt, 919 S.W.2d at 653 (citingGetty Oil, 845 S.W.2d at 800-01)cf. HECI Expiration Co. v. Neel, 982 S.W.2d 881, 890 (Tex. 1999) (“although the circum stances of e ach case m ust be examined, generally, parties are in privity [when they meet one of these three criteria”] ). The Court accordingly begins its analysis by considering these three bases for privity.
The EEOC did not control the state court action. EEOC attorneys participate d in mediation, attended trial, and com municated with Intervenors’ counsel, but “m ere participation in a prior trial does not suffice to bar the participant on principle s of res judicata, nor does knowledge of an ongoing trial.”Brown, 160 S.W.3d at 703 (citingMaxson v. Travis County Rent Account, 21 S.W.3d 311, 316 (Tex. App. – Austin 1999, pet. dism’d by agr.) Rather, a “controlling” party must participate in prior proceedings “to such an extent MEMORANDUM OPINION AND ORDER – PAGE 11

that it was clear that [it] had the right to direct them.” Maxson, 21 S.W.3d at 316 (emphasis added). JDC does not argue or present evidence that the EEOC’s participation rose to this level.
The Court next considers whether Intervenors represented the EEOC’s interestisn the prior litigation. The model for this type of privity is a legally authorized representative like a guardian ad litem or trustee, or someone such as a spouse or business partner who has the same rights and interests. E.g., In re Estate of Ayala, 986 S.W.2d 724, 727 (Tex. App. – Corpus Christi 1999, no pet.) (deeming party who brought prior action to invalidate will a representative of siblings with the same goal in subsequent suit). In order for a litigant to function as another’s representative, their interests in the suit must be identical. See Texas Real Estate Comm. v. Nagle , 767 S.W.2d 691, 693 (Tex. 1989) (“privity does not exist merely when persons are interested in the same question, but requires an identity of interest in the legal right actually litigated”); McGowan v. Huang, 120 S.W.3d 452, 463 (Tex. App. – Texarkana 2003, pet. denied) (no privity between child’s estate and parents of decedent child as individuals and guardian, where “the McGowans and the Estate shared many of the same interests in the result of the lawsuit, but the shared interests are not identical.”). Furthermore, in light of this identity requirement, it is difficult to conceive of a prior litigant as the purported privy’s “representative” when it litigated the same subject matter without diligently pursuing the purported privy’s distinctive interests. 2 See Nagle, 767 S.W.2d at
2 Of course, if privity were established on some ground other than representation, such as succession of interest, res judicata could fo reclose an action to pursue rights that the predecessor failed to diligently pursue in a prior suit on the same subject matter. See infra note 8. MEMORANDUM OPINION AND ORDER – PAGE 12

695; RESTATEMENT (SECOND) OF JUDGMENTS § 42(1)(e) (1982) (“A person is not bound by
a judgment for or against a party who purports to represent him if . . . [t]he representative
failed to prosecute or defend the action with due diligence and reasonable prudence, and the
opposing party was on notice of facts making that failure apparent.”)3
Intervenors did not represent the EEOC under this sta ndard. First, the EEOC has
interests distinct from those on whose behalf it bring suits under Title VI I. Outside the
specialized context of the Age Discrim ination in Employment Act,4 the EEOC “ does not
function simply as a vehicle for conducting litigation on behalf of private parties.” Waffle
House, 534 U.S. at 288 (citation om itted). Rather, the EEOC has independent statutor y
authority to bring enforcement actions for independent purposes. See id. at 296. Even when
the EEOC “pursues entirely victim -specific relief,” its choice to deploy lim ited resources
toward a particular case se rves to “vindicate the public interest, [and] not simply provide
make-whole relief for the employee.” See id. Accordingly, while Intervenors and the EEOC
3 The Texas Supreme Court has not explicitly adopted Section 42, though it construed a comparable provision in Ortega v. First RepublicBank Fort Worth, 792 S.W.2d 452 (Tex. 1990). See id. at 455 (citing R ESTATEMENT (SECOND) OF JUDGMENTS § 72). The Texas Supreme Court routinely looks to the Restatem ent in its res judicata decisions. See, e.g., Getty Oil, 845 S.W.2d at 798-99;Barr, 837 S.W.2d at 631;Jeanes v. Henderson, 688 S.W.2d 100, 104 n.4; Benson v. Wanda Petroleum, 468 S.W. 2d 361, 363 (Tex 1971).
4 See generally Vines v. Univ. of Louisiana at Monroe, 398 F.3d 700, 707 (5th Cir. 2005) (“The distinctive enforcem ent scheme of the ADEA term inates the right of an individual to pursue an action once the EEOC com mences an action to enforce the employee’s rights under the statute, whereas the enforcement scheme of Title VII does not terminate the rights of the employee once the EEOC brings a suit”);EEOC v. N. Gibson Sch. Corp., 266 F.3d 607, 615 (7th Cir. 2001) (“[W]e, along with the Second and Third Circuits, have emphasized the distinctive enforcement scheme of the ADEA, which places the EEOC in privity with the individual for whomit seeks relief. . . . [I]n this respect, the drafters of the ADEA consciously departed from the enforcement scheme of Title VII . . . .”)
MEMORANDUM OPINION AND ORDER – PAGE 13

shared interests, “the shared interests are not identical.” Cf. McGowan, 120 S.W.3d at 463.
Furthermore, Intervenors highlighted the distinction between their interests and those of the
EEOC by squandering their discrimination claims in the improvident pursuit of tangential
claims. Under Title VII, The EEOC vindicates the public interest by identifying and
confronting sexual harassment and other federally prohibited form s of discrimination as
such. Intervenors failed to do so in the state action. Accordingly, Intervenors did not represent the EEOC.5
Nor is the EEOC in privity with Intervenor s under the third traditional basis for
privity. JDC’s argument that the EEOC “derived” its claim from Intervenors by virtue of
basing its claim on conduct that victimized them is wrong for two reasons. First, this ground
traditionally encompasses only those who derive claims as successors in interest to property.
See Amstadt, 919 S.W.2d at 644 (citing Kirby Lumber Corp. v. Southern Lumber Co., 196
S.W.2d 387, 388 (Tex. 1946)). Second, the Texas Suprem e Court in Nagle rejected the
contention that an administrative agency “stands in the shoes” of a form er litigant simply
because the agency’s appearance is tied to that litigant’s circumstances. See 767 S.W.2d at
694-95. There the court held that the Texas Real Estate Commission was not in privity with
5 The EEOC’s previous resistance to producing correspondence between itself and Intervenors’ counsel on the grounds that such correspondence is “protected fromdiscovery under the principle of joint representation, the tatorney-client privilege, and the attorney work product privilege” does not alter this analysis . The Court has not determ ined that this correspondence is in fact protected on such grounds. If facts not before the Court justified such a conclusion, such facts might also support a conclusion that Intervenors represented the EEOC’s interests in the prior lawsuit for res judicata purposes. It is JDC’s burden to prove the elements of res judicata, including privity. Brown, 160 S.W.3d at 702. On the present record, JDC does not establish prior representation. MEMORANDUM OPINION AND ORDER – PAGE 14

a real estate agent, though it appeared “on behalf of, and in the name of” the agent pursuant to its governing statute. Id. at 694. This Court accordingly does not find privity solely on the ground that Intervenors’s persona l circumstances provide the basis for the EEOC’s appearance.
The Court next considers whether the EEOC and Intervenors are in privity on other grounds. JDC emphasizes that the three traditional grounds are not an exclusive list, and that Texas privity cases call for careful examination of each case’s circumstances. It further urges the Court to find privity simply on the grounds that preclusion would be appropriate in this case as a matter of policy. Additionally, JDCrelies on Amstadt’s formulation that “[p]rivity exists if the parties share an identity of interest in the basic legal right that is the subject of litigation.” See Amstadt, 919 S.W.2d at 653 (citing Nagle, 767 S.W.2d 691, 694 (Tex. 1989)). The Amstadt court subsequently found privity in part because for both parties, “the right at issue was the right to be compensated for injuries caused by the defective plumbing systems.” Id. JDC argues the EEOC is in privity with Intervenors because their previous suit sought to redress the same harm that the EEOC’s present suit seeks to redress.
These are substantial arguments. Res judicata seeks both to achieve judicial economy and to prevent successive suits from twice vexing a defendant for the same acts. Amstadt, 919 S.W.2d at 653. It would certainly promote these purposes to bar a claimwhen the party asserting it participated to som e degree in a prior suit to redress the sam e harm, and with diligence could have joined its present claim s to the prior suit. 6 Additionally, Amstadt’s
6It appears likely that the EEOC could have intervened and brought its present claims in the state court suit. It claim s that it could not have, because 42 U.S.C. § 2000e-5(f)(3) MEMORANDUM OPINION AND ORDER – PAGE 15

discussion of res judicata appears to blend privity and “ same subject matter” into a single
element with the goal of adjudicating claims for the same harm in one suit, whether they are
brought by one or m ultiple plaintiffs.7 Thus, the policy behind res judicata and a recent
privity decision of the Texas Supreme Court each suggest that the absence of a traditional
privity relationship should not excuse a party from failing diligently to avoid redundant
litigation.
Nonetheless, the Court concludes the Texas Suprem e Court would not hold the
EEOC’s claim precluded based on this rationale. While Amstadt suggests that the me re
ability to intervene in a prior suit on the same facts can itself establish privity, that suggestion
is dicta. The court found privity based on succession in interest. 919 S.W.2d at 653.
Longstanding formulations of the duty to bring related cla ims treat privity as a separate
inquiry prior to any discussion of whether the nonparty should have intervened in an earlier
provides that “[e]ach United States district court . . . shall have jurisdiction of actions brought under [Title VII] ” but does not m ention state courts. The Suprem e Court r ejected this argument with respect to individual Title VII claims in Donnelly. See 494 U.S. at 823 (“Title VII contains no language that expressly confines jurisdiction to federal courts or ousts state courts of their presum ptive jurisdiction”). The EEOC cites no reason why a differe nt analysis would apply if it brought a Title V II action. Given the Court’s disposition of the motion, however, it need not resolve this question.
7 The court stated: “Privity exists if the parties share in identity of interests in the basic legal right that is the subject of litigation. To dete rmine whether a prior and later lawsuit involved the same basic subject matter, we focus on the factual basis of the complaint. If the second plaintiffs seek to relitigate the matter which was the subject of the earlier litigation, res judicata bars the suit even if the second plaintiffs do not allege causes of action identical to those asserted by the first. Res judicata also precludes a second action on claismthat arise out of the same subject matter and which might have been litigated in the first suit. Under the foregoing standards, we consider whether the Knowlton plaintiffs were in privity with the Diehl plaintiffs, so that res judicata bars the Knowltons’ suit.” Id. at 653 (internal citations omitted).
MEMORANDUM OPINION AND ORDER – PAGE 16

suit on the sam e subject matter.8 This separate inquiry – before and after Amstadt – has
focused on the relationship between the purported privies and their respective interests in
litigation, e.g., Nagle, 767 S.W.2d at 693; McGowan, 120 S.W.3d at 463, not just on factual
similarities underlying their cases. See Benson, 468 S.W.2d at 363 (“privity is not
established by the mere fact that persons may happen to be interested in the same question
or in proving the same state of facts.”); Fincher v. Wright, 141 S.W.3d 255, 261 (Tex. App.
– Fort Worth 2004, orig. proceeding) (sam e). Furthermore, numerous Texas cases have
found no privity – and therefore no preclusion – even where judicial efficiency and courtesy
toward the opposing party would have arguably called for a single action.9
8 See,e.g., Abbott Labs. v. Gravis, 470 S.W.2d 639, 642 (Tex. 1971) (“[Ap]arty cannot relitigate matters which he might have interposed, but failed to do so in an action between the same parties or their priviesin reference to the same subject matter.”) (citation omitted); Texas Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex. 1979), cited in Amstadt, 919 S.W.2d at 653 (“the scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit.”); cf. Barr, 837 S.W.2d at 630. A party that is not a privy on independent grounds does not become one under this rule. A case that JDC cites for other purposes does state the rule more favorably for JDC.. See Dennis v. First State Bank of Texas, 989 S.W.2d 22, 26 (Tex. App. – Fort Worth 1998, no pet.) (“res judicata prevents the relitigation of a claim that has been finally adjudicated, as well as all related matters that reasonably could and should have been litigated in the prior suit).” However, even in that case the Court first considered privity based on the relationship be tween the parties, and determ ined there was privity before moving onto the question of whether the party oculd have brought its claims in the prior suit. See id. at 27-28.
9 See Benson, 468 S.W.2d at 363-64 (driver’s suit for damages arising from accident with other vehicles did not preclude his passenger’s subsequent suitM); cGowan, 120 S.W.3d at 463 (parents’ suit in individual and guardian capacity did not preclude decedent child’s estate from bringing subsequent action based on the same transaction); Fincher, 141 S.W.3d at 261 (no privity between parties alleging “identical facts and theories of recovery,” where one party had an interest in attorneys’ fees in addition to the parties’ joint interest in
MEMORANDUM OPINION AND ORDER – PAGE 17

The Court declines to apply a holistic, judicial efficiency-based approach to privity because Texas cases have not done so.10 Notwithstanding the broad terms in which Texas cases describe privity, JDC does not cite any published Texas case that expressly found privity in the absence of the three traditional bases. Bound to follow Texas res judicata law, the Court does not consider it appropriate to break new ground in Texas law, even in the interest of furthering stated goals of Texas res judicata. Because JDC does not establish privity under any established criterion in Texas law, the state court judgment does not bind the EEOC. Accordingly, the Court denies the motion for summary judgment as to the EEOC.
V. CONCLUSION Intervenors’ Title VII suit is barred by a prior judgment in state court, because with diligence they could have brought it in the prior suit. However, the prior suit does not bar the EEOC’s Title VII suit on the sam e grounds, because the EEOC is not in privity with Intervenors. While this results in Intervenors indirectly receiving a second bite at the apple, which they could not accomplish directly, the Court has determined that Title VII and Texas res judicata law require it. Accordingly, the Court grants the motion to amend and denies the motion to intervene and the motion for summary judgment.
maximizing a qui tam recovery, with result that venue determination as to one party did not bind the other).
10 If the Court were to simply evaluate the totality of the circumstances, it still is not certain res judicata would be appropriate here. Intervenors and the EEOC did not diligently endeavor to consolidate the two cases into the pending state litigation, but neither did JDC. Defendant Cumur, not JDC, filed the plea in abatement that Intervenors resisted. In contrast, JDC’s interest in avoiding redundant litigation appears to have peaked after the state court suit terminated in its favor. MEMORANDUM OPINION AND ORDER – PAGE 18

SIGNED September 7, 2005.

__________________________________ David C. Godbey
United States District Judge

MEMORANDUM OPINION AND ORDER – PAGE 19

 
 Case 3:04-cv-01892-N Document 56 Filed 05/21/2008 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. JEFFERSON DENTAL CLINICS, PA,
Defendant.

} } } } } } Civil Action No. 3:04-CV-1892-N } } } } }

CONSENT DECREE THE CONSENT DECREE is made and entered into by and between the Plaintiff, Equal Employment Opportunity Commission (“EEOC”), and Defendant, Jefferson Dental Clinics, P.A. (“JDC”), in the United States District Court for the Northern District of Texas, Dallas Division. The EEOC filed its Complaint on August 30, 2004, in Civil Action No. 3-04-CV-1892-N, alleging that defendant, JDC, violated Title VII of the Civil Rights Act of 1964, as amended, with regard to the work environment for employees. The Defendant denies such allegations. On June 19, 2003, prior to the EEOC filing this lawsuit, the same four individuals referenced above filed a separate lawsuit against JDC in Dallas County District Court, Cause No. 03-06179-J (“the state court lawsuit”) based on the same or similar factual allegations, but asserting different legal claims. The EEOC was not a party to the state court action. The trial in the state court lawsuit was held on November 15-23, 2004, after which the jury returned a

CONSENT DECREE – Page 1

Case 3:04-cv-01892-N Document 56 Filed 05/21/2008 Page 2 of 5
unanimous verdict in favor of JDC. On December 13, 2004, the judge in the state court lawsuit entered judgment on behalf of JDC.
In the present lawsuit, the Fifth Circuit Court of Appeals ruled in EEOC v. Jefferson Dental Clinics, P.A., 478 F.3d 690 (5th Cir. 2007), that because of the judgment in JDC’s favor in the state court lawsuit, the EEOC is precluded in this particular case from seeking monetary or other individual-specific relief.
The EEOC seeks to proceed to trial on the Title VII federal statutory claims for purposes of attempting to secure general injunctive relief.
JDC continues to adamantly deny the allegations raised in the state court lawsuit and the EEOC’s lawsuit.
The EEOC and JDC therefore agree to enter into this Consent Decree to resolve any remaining disputes without resort to further litigation:
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the sufficiency of which are hereby acknowledged, the parties agree as follows, the Court finds appropriate, and therefore, it is ORDERED, ADJUDGED AND DECREED that:
1. This Consent Decree resolves all issues raised in EEOC charge nos. 310-A36035, 301-A3-06037, 310-A3-06038, and 310-A3-06039. This Consent Decree further resolves all issues in the Complaint filed by the EEOC in this civil action. The EEOC waives further claims and/or litigation on all issues raised in the above referenced charges of discrimination and the Complaint. The EEOC does not waive processing or litigating charges other than the above referenced charges of discrimination. The EEOC acknowledges that there are no known charges of discrimination against JDC other than those referenced above.
CONSENT DECREE – Page 2

Case 3:04-cv-01892-N Document 56 Filed 05/21/2008 Page 3 of 5
2. JDC agrees to publish and distribute a non-harassment policy to all employees and new hires during the term of this Consent Decree. The policy will be distributed within 90 days of the effective date of this Consent Decree. JDC will report to the EEOC that it has complied with this requirement within fourteen (14) days after distributing the policy.
3. JDC agrees to conduct non-harassment training for all its employees and managers within 180 days of the effective date of this Consent Decree. The training will advise employees of the requirements and prohibitions of Title VII of the Civil Rights Act of 1964. The training will inform the employees of the complaint procedure for individuals who believe they have experienced discrimination. The training shall be at least one hour in duration. JDC will report to the EEOC that it has complied with this requirement within fourteen (14) days after the training is completed.
4. The EEOC agrees that it will not proceed on any claims raised in its Complaint or in the underlying charges referenced above, except as may be necessary to any enforcement of this Decree.
5. All reports to the EEOC required by this Consent Decree shall be sent to William C. Backhaus, Senior Trial Attorney, EEOC, 207 S. Houston, Third Floor, Dallas, Texas 75202.
6. Neither the EEOC nor JDC shall contest the validity of this Consent Decree nor the jurisdiction of the federal district court to enforce this Consent Decree and its terms or the right of either party to the Consent Decree to bring an enforcement action upon breach of any term of this Consent Decree by either such party. Nothing in this Consent Decree shall be construed to preclude the EEOC from enforcing this Decree in the event that JDC fails to perform the promises and representations contained herein. The EEOC shall be authorized to
CONSENT DECREE – Page 3

Case 3:04-cv-01892-N Document 56 Filed 05/21/2008 Page 4 of 5
seek compliance with the Consent Decree through civil action in the United States District Court.
7. The term of this Consent Decree shall be for one (1) year. 8. The parties to this Consent Decree agree to bear their own attorneys’ fees associated with the above referenced Complaint except to the extent that any costs have been awarded previously. 9. Nothing herein shall be construed as evidence that JDC committed any wrongdoing. JDC specifically and adamantly denies that it in any way violated any legal obligation whatsoever. 10. The EEOC enters this agreement for injunctive relief only based on the unique circumstances of this particular case and its related history in both state and federal courts. This Decree is not to be construed as representative of the terms and conditions which the EEOC would require or accept for resolution under any other facts or circumstances. SO ORDERED, ADJUDGED AND DECREED. Signed May 20, 2008.
____________________________________ David C. Godbey United States District Judge
CONSENT DECREE – Page 4

Case 3:04-cv-01892-N Document 56 Filed 05/21/2008 Page 5 of 5

AGREED TO AS TO FORM AND SUBSTANCE: Signed this 22nd day of April, 2008.

FOR THE PLAINTIFF:
/s/ Robert A. Canino _____________________________ ROBERT A. CANINO Regional Attorney
SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
WILLIAM C. BACKHAUS Senior Trial Attorney Texas State Bar No. 01493850
JOEL P. CLARK Trial Attorney Texas Bar No. 24050425
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 S. Houston Street, Third Floor Dallas, Texas 75202 Tel No. (214)-253-2746 Fax No. (214)-253-2749

FOR THE DEFENDANT:
/s/ Ron Chapman, Jr _____________________________ RON CHAPMAN, JR. Texas Bar No. 00793489
OGLETREE, DEAKINS, NASH SMOAK & STEWART, P.C. 700 Preston Commons 8117 Preston Road Dallas, Texas 75225

CONSENT DECREE – Page 5

 
 E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

2005 WL 3050319 Only the Westlaw citation is currently available.
United States District Court, N.D. Texas, Dallas Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
JEFFERSON DENTAL CLINICS, P.A., Defendant.
No. Civ.A. 304CV1892N. | Nov. 10, 2005.
Attorneys and Law Firms
Ronetta J. Francis, Robert A. Canino, Jr., Dallas, TX, for Plaintiff.
Ron W Chapman, Jr., Denise C. Villani, Ogletree Deakins Nash Smoak & Stewart, Dallas, TX, for Defendant.
Opinion
AMENDED MEMORANDUM OPINION AND ORDER
GODBEY, J.
*1 Before the Court are the motion of Heather Sooter, Carol Cantu, Linda Housholder, and Esmeralda Jimenez (the “Intervenors”) to intervene, filed on January 4, 2005, Defendant Jefferson Dental Clinic, P.A.’s (“JDC”) Motion for Leave to File Its First Amended Answer, filed on March 9, 2005, and JDC’s motion for summary judgment, filed on March 11, 2005. The disposition of each of these motions turns on the question whether a related state court judgment in favor of JDC and against Intervenors precludes the present action. Because res judicata bars Intervenors’ Title VII claim, the Court grants the motion to amend and denies the motion to intervene. But because the Court finds no privity between Intervenors and the EEOC, it denies the motion for summary judgment.
I. THE TWO CASES
JDC, which operates 11 dental clinics in the Dallas area, employed Intervenors at its headquarters until April 2003. On June 2, 2003, each of the Intervenors filed a Charge of Discrimination with the EEOC against JDC, alleging sexual harassment, constructive discharge, and retaliation.

An EEOC investigation concluded there was reasonable cause to believe JDC subjected Intervenors to sexual harassment, a sexually hostile work environment, constructive discharge and retaliation in violation of Title VII. The EEOC brought the present suit August 30, 2004, alleging that JDC violated Title VII by subjecting all Intervenors to a sexually hostile work environment, terminating Intervenors Cantu, Housholder, and Sooter in retaliation for opposition to sexual harassment, and constructively discharging Jimenez for the same reason. The EEOC seeks injunctive relief against JDC as well as compensatory and punitive damages for Intervenors.
In the meantime, Intervenors sued JDC in Texas state court. On June 19, 2003, approximately two weeks after filing their EEOC Charges, Intervenors brought suit against JDC and two of its employees, Kadri Cumur and David Alameel. Their Original Petition alleged that Cumur in particular engaged in an alarming pattern of conduct that included offensive touching, interrogating Intervenors about their sexual predilections and partners, leering at them, commenting on their clothing, makeup, and figures, and much other similiar behavior. The suit asserted claims for intentional infliction of emotional distress, wrongful discharge, and negligent retention. Intervenors did not assert claims for sexual discrimination or sexual harassment under Title VII or comparable state law. The wrongful discharge claim is nevertheless comparable to a claim of retaliation for making a sexual discrimination charge, which is forbidden under 42 U.S.C. § 2000e-3(a). Intervenors amended their petition on December 10, 2003 and again on March 12, 2004, each time without adding sexual discrimination or sexual harassment claims.
When the EEOC brought the present suit in federal court, defendant Cumur filed a plea in abatement with the state court, arguing that “[t]he present case should ... be abated to avoid the possibility of inconsistent judgments and double-recovery arising from the same conduct.” In the same motion he sought a continuance due to the then-recent death of his father in a foreign country. Intervenors opposed this motion and soon thereafter requested a trial date as soon as possible. The state court denied the plea in abatement and set the case for trial on November 15, 2004.
*2 The EEOC involved itself in the state court action. EEOC lawyers participated when Intervenors, JDC, and the other defendants attended a court-ordered mediation on September 22, 2004. The EEOC explains that it participated in order to “ma[ke] an effort to resolve its outstanding Title VII case against the defendant, and to obtain such injunctive and other non-monetary relief ... that the charging parties would not have been able to secure in their own right....” The mediation failed to
1

E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

resolve any claims. EEOC lawyers attended voir dire and trial in state court. They took notes and regularly conferred with Intervenors’ counsel, but did not sit at counsel table or otherwise officially participate in the trial. Intervenors’ counsel turned over to the EEOC documents that it had obtained through discovery in the state suit. The EEOC has resisted producing these documents to JDC in the present case, stating they are protected “under the principle of joint representation, the attorney-client privilege, and the attorney work product privilege.”
The state court trial lasted one week. JDC prevailed on all claims either by directed verdict or jury verdict. Counsel for Intervenors reports that the claim for intentional infliction of emotional distress, in particular, did not go to the jury because “the state court found that our clients’ claims sounded in sex discrimination, over which the state court had no jurisdiction.” The state court directed a verdict on this claim pursuant to Hoffmann-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex.2004), which held that intentional infliction of emotional distress is a “gap-filler” tort that does not overlap with statutory causes of action for sexual harassment.
On January 4, 2005, Intervenors moved to intervene in the present case. Their proposed complaint asserts a Title VII sex discrimination claim against JDC and seeks damages. JDC opposes the motion to intervene, asserting that Intervenors claims are barred by res judicata. Subsequently JDC moved to amend its complaint to assert res judicata as a defense, and moved for summary judgment on res judicata grounds, arguing that the EEOC should be considered in privity with Intervenors.

JUDICATA
*3 Federal Rule of Civil Procedure 24(a) provides for intervention of right when a statute confers an unconditional right to intervene. 42 U.S.C. § 2000e-5(f)(1) confers such a right upon Intervenors, as the “persons aggrieved” in an action that the EEOC brings. However, the purpose of intervention is to assert a claim or defense. FED. R. CIV. P. 24(c). Because the Court concludes that the prior judgment bars present Intervenors’ Title VII claim, their intervention is futile. Accordingly, the Court denies the motion to intervene.
A. Texas Res Judicata Law Applies
The Full Faith and Credit Act, 28 U.S.C. § 1738, requires federal courts to apply state res judicata law to determine the claim preclusive effect of state court judgments. United States ex rel. Laird v. Lockheed Martin Eng’g & Science Servs. Co., 336 F.3d 346, 357 (5th Cir.2003). Accordingly, the Court applies Texas law to determine whether Intervenors’ claim is precluded. There are a number of ways in which state res judicata law can preclude a federal claim. For the present question, it is enough that a claim is precluded in federal court if it would be precluded in state court. See Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (“The [Full Faith and Credit] Act thus directs all courts to treat a state court judgment with the same respect that it would receive in the courts of the rendering state.”).

II. THE COURT GRANTS THE MOTION TO AMEND
The Court should freely grant leave to amend unless there is undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, or futility of amendment. Ynclan v. Dep’t of the Air Force, 943 F.2d 1388, 1391 (5th Cir.1991). JDC amended its answer promptly after the state suit concluded, and the Court decides below that the amendment is not futile as to Intervenors. Accordingly, the Court grants the motion to amend.
III. THE COURT DENIES THE MOTION TO INTERVENE AS FUTILE BECAUSE
INTERVENORS’ CLAIMS ARE BARRED BY RES

B. Intervenors’ Title VII Suit Would Be Barred in a Texas Court and Is Barred in This Court
Under Texas law, res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex.1996) (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992)). It is a mixed question of fact and law that the trial court determines. Ex parte Myers, 68 S.W.3d 229, 231 (Tex.App.-Texarkana 2002, no pet.).
The party asserting res judicata has the burden to plead and prove its elements. Brown v. Zimmerman, 160 S.W.3d 695, 702 (Tex.App.-Dallas 2005, no pet.). These are: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Id. The question whether claims “could
2

E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

have been raised” in the first action assumes the party’s “exercise of diligence” to combine the claims, even if the timetables for resolving them does not completely overlap. See Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 799 (Tex.1993) (plaintiff, with diligence, could have brought claim in prior suit, though it was contingent upon outcome of other claims in that suit). It is presently undisputed that JDC obtained a final judgment on the state law claims from a court of competent jurisdiction. There is similarly no doubt that the second element is satisfied, as JDC was a defendant in the prior lawsuit. The third element requires more discussion.
*4 In its 1992 Barr decision, the Texas Supreme Court resolved prior confusion and affirmed the “transactional” approach to determining when an action is “based on the same claims” as those of a prior action. 867 S.W.3d at 630-31. Under Barr, “a subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit.” Id. at 631. Furthermore, the “determination of what constitutes the subject matter of the suit ... requires an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action.” Id. at 630; cf. Hogue v. Royse City, Texas, 939 F.2d 1249, 1253 (5th Cir.1991) (applying Texas law and citing Flores v Edinburg Consol. Indep. Sch. Dist., 741 F.2d 773, 777 (5th Cir.1984)) (“ ‘a different cause of action’ is one that proceeds not only on a sufficiently different legal theory but also on a different factual footing ... that is, an action that can be maintained even if all the disputed factual issues raised in the plaintiff’s original complaint are conceded in the defendant’s favor”). The inquiry also considers judicial efficiency and convenience. See 837 S.W.2d at 630. Where two claims depend upon proof of the same central facts and would form a “convenient trial unit, whereas separate lawsuits would require significant duplication of effort,” judgment on one of the claims precludes a second suit on the other. 837 S.W.2d at 631; see Laird, 336 F.3d at 359 (applying Texas law).
Under this test, the present claims concern the same subject matter as the state court suit. Intervenors’ state law petition details conduct that any educated layperson would identify as sexual harassment. It does so with such thoroughness and precision that the state court held the intentional infliction of emotional distress claim could not go forward because it sounded in sex discrimination, though no sex discrimination claim was before the court. The factual overlap between Intervenors’ prior petition and present complaint is almost complete, such that obvious inefficiencies would arise from trying the Title VII claim in a separate court from the other claims. Finally, if the disputed facts in the original petition were assumed to be decided against Intervenors as required under Flores, they could not prevail on their Title VII claim.

It is equally apparent that Intervenors could have brought all their claims together in state court through exercise of diligence. State courts have jurisdiction over Title VII claims, Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), and the EEOC was required to issue a right to sue letter upon Intervenors’ written request at any time after November 30, 2003. See 29 C.F.R. § 1601.28(a)(1)(2005).1 Intervenors could have approached the 180 day delay in a number of ways. They could have delayed bringing their state law claims, or could have sought (or simply acquiesced to) abatement. Alternately, they could have added the Title VII claim by amendment. See Barr, 837 S.W.2d at 631 (discussing amendment as a method for diligently avoiding claim splitting). Intervenors did none of these things. It is undisputed that Intervenors had a two year statute of limitations to bring their state law claims, but they brought them only months after their terminations and two weeks after filing their EEOC Charge. In addition, Intervenors resisted state court defendant Cumur’s plea in abatement and requested an early trial date. The most convincing explanation for Intervenors’ haste appears in the supplemental brief: “Because of Plaintiffs’ abrupt terminations by Defendant, Plaintiffs suffered immediate and severe financial problems needing expedited relief to meet their mortgage and other obligations.” While the Court sympathizes with Intervenors’ financial problems, the hope for a quick partial recovery is not an acceptable excuse under Texas law for subjecting defendants and courts to redundant proceedings.

1

“When a person claiming to be aggrieved requests, in

writing, that a notice of right to sue be issued in the

charge to which the request relates is filed against the

respondent other than a government, governmental

agency or political subdivision, the Commission shall

promptly issue such notice as described in § 1601.28(e)

to all parties, at any time after the expiration of one

hundred eighty (180) days from the date of filing of the

charge with the Commission....”

Section 1601.28(e) provides that the notice of right to

sue shall include “[a]uthorization to the aggrieved

person to bring a civil action under title VII or the

ADA ... within 90 days from receipt of such

authorization.”

*5 Intervenors claim that in fact they diligently sought to bring their Title VII claim in state court, but they do not persuade the Court. Intervenors could have addressed their ostensible concern for statutes of limitations by seeking abatement, and there is no evidence that limitations actually threatened any of their claims. And while Intervenors claim to have sought right to sue letters, the evidence they present does not support a conclusion that they made a diligent effort to do so. Intervenors
3

E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

demonstrate that they requested a right to sue letter from the Texas Commission of Human Rights for related state law claims on July 16, 2004, eight months after the 180 day deadline passed. They claim the TCHR denied this request on the grounds that the EEOC had not issued a right to sue letter. Intervenors also claim-for the first time in the supplemental brief-that they “requested a Right to Sue letter from the EEOC, but the EEOC declined, stating that they were still investigating the allegations.” This claim is not credible, because Intervenors fail to reference any written evidence in its support. See 29 C.F.R. § 1601.28(a)(1) (2005) (“When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued ...”) (emphasis added). Intervenors have worked closely with the EEOC, and regulations require the EEOC to issue a right to sue letter after 180 days upon written request. In the absence of evidence or explanation for the EEOC’s purported refusal to issue the right to sue letter, the Court concludes that Intervenors did not diligently seek such a letter from the EEOC.
The court has determined that with diligence, Intervenors’ Title VII claim could have been litigated together with a prior claim based on the same factual subject matter. Texas res judicata law therefore bars it. Accordingly, the Court denies the motion to intervene as futile.

*6 Texas treats privity as an exception to the general rule that a person is not bound by a judgment in a suit to which it was not a party. Amstadt, 919 S.W.2d at 652. The purposes of the exception are to ensure that a defendant is not “twice vexed” for the same acts, and to achieve judicial economy by precluding those who have had a fair trial from relitigating claims. Id. at 653. Texas cases consistently state that no prevailing definition of privity exists that automatically applies to all cases involving res judicata, and that determination of who are privies requires careful examination of the circumstances of each case. See Brown 160 S.W.3d at 703; Amstadt, 919 S.W.2d at 653; Getty Oil, 845 S.W.2d at 800.
Nonetheless, the courts cite a list of standard circumstances that establish privity: “People can be in privity in at least three ways: (1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the main action.” Amstadt, 919 S.W.2d at 653 (citing Getty Oil, 845 S.W.2d at 800-01) cf. HECI Expiration Co. v. Neel, 982 S.W.2d 881, 890 (Tex.1999) (“although the circumstances of each case must be examined, generally, parties are in privity [when they meet one of these three criteria]”). The Court accordingly begins its analysis by considering these three bases for privity.

IV. JDC IS NOT ENTITLED TO SUMMARY JUDGMENT ON RES JUDICATA BECAUSE THE
EEOC WAS NOT IN PRIVITY WITH THE INTERVENORS
Summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). JDC moves for summary judgment solely on res judicata grounds. Because res judicata bars the relitigation of a claim as a matter of law, see Barr, 837 S.W.2d at 628-29 & n. 1, no material issues of fact can remain if the Court holds a claim precluded.
As stated above, the elements for res judicata in Texas are: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Amstadt, 919 S.W.2d at 652. Here again, there is no dispute that the underlying state suit was a prior final judgment on the merits by a court of competent jurisdiction. The other two issues are in dispute. The Court concludes that the EEOC is not in privity with Intervenors, which makes it unnecessary to make a determination as to the third element.

The EEOC did not control the state court action. EEOC attorneys participated in mediation, attended trial, and communicated with Intervenors’ counsel, but “mere participation in a prior trial does not suffice to bar the participant on principles of res judicata, nor does knowledge of an ongoing trial.” Brown, 160 S.W.3d at 703 (citing Maxson v. Travis County Rent Account, 21 S.W.3d 311, 316 (Tex.App.-Austin 1999, pet. dism’d by agr.) Rather, a “controlling” party must participate in prior proceedings “to such an extent that it was clear that [it] had the right to direct them.” Maxson, 21 S.W.3d at 316 (emphasis added). JDC does not argue or present evidence that the EEOC’s participation rose to this level.
The Court next considers whether Intervenors represented the EEOC’s interests in the prior litigation. The model for this type of privity is a legally authorized representative like a guardian ad litem or trustee, or someone such as a spouse or business partner who has the same rights and interests. E.g., In re Estate of Ayala, 986 S.W.2d 724, 727 (Tex.App.-Corpus Christi 1999, no pet.) (deeming party who brought prior action to invalidate will a representative of siblings with the same goal in subsequent suit). In order for a litigant to function as another’s representative, their interests in the suit must be identical. See Texas Real Estate Comm. v. Nagle, 767 S.W.2d 691, 693 (Tex.1989) (“privity does not exist merely when persons are interested in the same question, but requires an identity of interest in the legal right
4

E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

actually litigated”); McGowan v. Huang, 120 S.W.3d 452, 463 (Tex.App.-Texarkana 2003, pet. denied) (no privity between child’s estate and parents of decedent child as individuals and guardian, where “the McGowans and the Estate shared many of the same interests in the result of the lawsuit, but the shared interests are not identical.”). Furthermore, in light of this identity requirement, it is difficult to conceive of a prior litigant as the purported privy’s “representative” when it litigated the same subject matter without diligently pursuing the purported privy’s distinctive interests.2 See Nagle, 767 S.W.2d at 695; RESTATEMENT (SECOND) OF JUDGMENTS § 42(1)(e) (1982) (“A person is not bound by a judgment for or against a party who purports to represent him if ... [t]he representative failed to prosecute or defend the action with due diligence and reasonable prudence, and the opposing party was on notice of facts making that failure apparent.”)3

2

Of course, if privity were established on some ground

other than representation, such as succession of interest,

res judicata could foreclose an action to pursue rights

that the predecessor failed to diligently pursue in a prior

suit on the same subject matter. See infra note 8.

3

The Texas Supreme Court has not explicitly adopted

Section 42, though it construed a comparable provision

in Ortega v. First Republic Bank Fort Worth, 792

S.W.2d 452 (Tex.1990). See id. at 455 (citing

RESTATEMENT (SECOND) OF JUDGMENTS § 72).

The Texas Supreme Court routinely looks to the

Restatement in its res judicata decisions. See, e.g.,

Getty Oil, 845 S.W.2d at 798-99; Barr, 837 S.W.2d at

631; Jeanes v. Henderson, 688 S.W.2d 100, 104 n. 4;

Benson v. Wanda Petroleum, 468 S.W.2d 361, 363

(Tex.1971).

improvident pursuit of tangential claims. Under Title VII, The EEOC vindicates the public interest by identifying and confronting sexual harassment and other federally prohibited forms of discrimination as such. Intervenors failed to do so in the state action. Accordingly, Intervenors did not represent the EEOC.5

4

See generally Vines v. Univ. of Louisiana at Monroe,

398 F.3d 700, 707 (5th Cir.2005) (“The distinctive

enforcement scheme of the ADEA terminates the right

of an individual to pursue an action once the EEOC

commences an action to enforce the employee’s rights

under the statute, whereas the enforcement scheme of

Title VII does not terminate the rights of the employee

once the EEOC brings a suit”); EEOC v. N. Gibson

Sch. Corp., 266 F.3d 607, 615 (7th Cir.2001) (“[W]e,

along with the Second and Third Circuits, have

emphasized the distinctive enforcement scheme of the

ADEA, which places the EEOC in privity with the

individual for whom it seeks relief.... [I]n this respect,

the drafters of the ADEA consciously departed from the

enforcement scheme of Title VII....”)

5

The EEOC’s previous resistance to producing

correspondence between itself and Intervenors’ counsel

on the grounds that such correspondence is “protected

from discovery under the principle of joint

representation, the attorney-client privilege, and the

attorney work product privilege” does not alter this

analysis. The Court has not determined that this

correspondence is in fact protected on such grounds. If

facts not before the Court justified such a conclusion,

such facts might also support a conclusion that

Intervenors represented the EEOC’s interests in the

prior lawsuit for res judicata purposes. It is JDC’s

burden to prove the elements of res judicata, including

privity. Brown, 160 S.W.3d at 702. On the present

record, JDC does not establish prior representation.

*7 Intervenors did not represent the EEOC under this standard. First, the EEOC has interests distinct from those on whose behalf it bring suits under Title VII. Outside the specialized context of the Age Discrimination in Employment Act,4 the EEOC “does not function simply as a vehicle for conducting litigation on behalf of private parties.” Waffle House, 534 U.S. at 288 (citation omitted). Rather, the EEOC has independent statutory authority to bring enforcement actions for independent purposes. See id. at 296. Even when the EEOC “pursues entirely victim-specific relief,” its choice to deploy limited resources toward a particular case serves to “vindicate the public interest, [and] not simply provide make-whole relief for the employee.” See id. Accordingly, while Intervenors and the EEOC shared interests, “the shared interests are not identical.” Cf. McGowan, 120 S.W.3d at 463. Furthermore, Intervenors highlighted the distinction between their interests and those of the EEOC by squandering their discrimination claims in the

Nor is the EEOC in privity with Intervenors under the third traditional basis for privity. JDC’s argument that the EEOC “derived” its claim from Intervenors by virtue of basing its claim on conduct that victimized them is wrong for two reasons. First, this ground traditionally encompasses only those who derive claims as successors in interest to property. See Amstadt, 919 S.W.2d at 644 (citing Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 388 (Tex.1946)). Second, the Texas Supreme Court in Nagle rejected the contention that an administrative agency “stands in the shoes” of a former litigant simply because the agency’s appearance is tied to that litigant’s circumstances. See 767 S.W.2d at 694-95. There the court held that the Texas Real Estate Commission was not in privity with a real estate agent, though it appeared “on behalf of, and in the name of” the agent pursuant to its governing statute. Id. at 694. This Court accordingly does not find privity solely on the
5

E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

ground that Intervenors’s personal circumstances provide the basis for the EEOC’s appearance.
The Court next considers whether the EEOC and Intervenors are in privity on other grounds. JDC emphasizes that the three traditional grounds are not an exclusive list, and that Texas privity cases call for careful examination of each case’s circumstances. It further urges the Court to find privity simply on the grounds that preclusion would be appropriate in this case as a matter of policy. Additionally, JDC relies on Amstadt’s formulation that “[p]rivity exists if the parties share an identity of interest in the basic legal right that is the subject of litigation.” See Amstadt, 919 S.W.2d at 653 (citing Nagle, 767 S.W.2d 691, 694 (Tex.1989)). The Amstadt court subsequently found privity in part because for both parties, “the right at issue was the right to be compensated for injuries caused by the defective plumbing systems.” Id. JDC argues the EEOC is in privity with Intervenors because their previous suit sought to redress the same harm that the EEOC’s present suit seeks to redress.
*8 These are substantial arguments. Res judicata seeks both to achieve judicial economy and to prevent successive suits from twice vexing a defendant for the same acts. Amstadt, 919 S.W.2d at 653. It would certainly promote these purposes to bar a claim when the party asserting it participated to some degree in a prior suit to redress the same harm, and with diligence could have joined its present claims to the prior suit.6 Additionally, Amstadt’s discussion of res judicata appears to blend privity and “same subject matter” into a single element with the goal of adjudicating claims for the same harm in one suit, whether they are brought by one or multiple plaintiffs.7 Thus, the policy behind res judicata and a recent privity decision of the Texas Supreme Court each suggest that the absence of a traditional privity relationship should not excuse a party from failing diligently to avoid redundant litigation.

6

It appears likely that the EEOC could have intervened

and brought its present claims in the state court suit. It

claims that it could not have, because 42 U.S.C. §

2000e-5(f)(3) provides that “[e]ach United States

district court ... shall have jurisdiction of actions

brought under [Title VII]” but does not mention state

courts. The Supreme Court rejected this argument with

respect to individual Title VII claims in Donnelly. See

494 U.S. at 823 (“Title VII contains no language that

expressly confines jurisdiction to federal courts or ousts

state courts of their presumptive jurisdiction”). The

EEOC cites no reason why a different analysis would

apply if it brought a Title VII action. Given the Court’s

disposition of the motion, however, it need not resolve

this question.

7

The court stated: “Privity exists if the parties share in

identity of interests in the basic legal right that is the subject of litigation. To determine whether a prior and later lawsuit involved the same basic subject matter, we focus on the factual basis of the complaint. If the second plaintiffs seek to relitigate the matter which was the subject of the earlier litigation, res judicata bars the suit even if the second plaintiffs do not allege causes of action identical to those asserted by the first. Res judicata also precludes a second action on claims that arise out of the same subject matter and which might have been litigated in the first suit. Under the foregoing standards, we consider whether the Knowlton plaintiffs were in privity with the Diehl plaintiffs, so that res judicata bars the Knowltons’ suit.” Id. at 653 (internal citations omitted).

Nonetheless, the Court concludes the Texas Supreme Court would not hold the EEOC’s claim precluded based on this rationale. While Amstadt suggests that the mere ability to intervene in a prior suit on the same facts can itself establish privity, that suggestion is dicta. The court found privity based on succession in interest. 919 S.W.2d at 653. Longstanding formulations of the duty to bring related claims treat privity as a separate inquiry prior to any discussion of whether the nonparty should have intervened in an earlier suit on the same subject matter.8 This separate inquiry-before and after Amstadt-has focused on the relationship between the purported privies and their respective interests in litigation, e.g., Nagle, 767 S.W.2d at 693; McGowan, 120 S.W.3d at 463, not just on factual similarities underlying their cases. See Benson, 468 S.W.2d at 363 (“privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts.”); Fincher v. Wright, 141 S.W.3d 255, 261 (Tex.App.-Fort Worth 2004, orig. proceeding) (same). Furthermore, numerous Texas cases have found no privity-and therefore no preclusion-even where judicial efficiency and courtesy toward the opposing party would have arguably called for a single action.9

8

See, e.g., Abbott Labs. v. Gravis, 470 S.W.2d 639, 642

(Tex.1971) (“[A] party cannot relitigate matters which

he might have interposed, but failed to do so in an

action between the same parties or their privies in

reference to the same subject matter.”) (citation

omitted); Texas Water Rights Comm’n v. Crow Iron

Works, 582 S.W.2d 768, 771 (Tex.1979), cited in

Amstadt, 919 S.W.2d at 653 (“the scope of res judicata

is not limited to matters actually litigated; the judgment

in the first suit precludes a second action by the parties

and their privies not only on matters actually litigated

but also on causes of action or defenses which arise out

of the same subject matter and which might have been

litigated in the first suit.”); cf. Barr, 837 S.W.2d at 630.

A party that is not a privy on independent grounds does

not become one under this rule. A case that JDC cites

for other purposes does state the rule more favorably

6

E.E.O.C. v. Jefferson Dental Clinics, P.A., Not Reported in F.Supp.2d (2005)

for JDC.. See Dennis v. First State Bank of Texas, 989 S.W.2d 22, 26 (Tex.App.-Fort Worth 1998, no pet.) (“res judicata prevents the relitigation of a claim that has been finally adjudicated, as well as all related matters that reasonably could and should have been litigated in the prior suit).” However, even in that case the Court first considered privity based on the relationship between the parties, and determined there was privity before moving onto the question of whether the party could have brought its claims in the prior suit. See id. at 27-28.

10

If the Court were to simply evaluate the totality of the

circumstances, it still is not certain res judicata would

be appropriate here. Intervenors and the EEOC did not

diligently endeavor to consolidate the two cases into the

pending state litigation, but neither did JDC. Defendant

Cumur, not JDC, filed the plea in abatement that

Intervenors resisted. In contrast, JDC’s interest in

avoiding redundant litigation appears to have peaked

after the state court suit terminated in its favor.

9

See Benson, 468 S.W.2d at 363-64 (driver’s suit for

damages arising from accident with other vehicles did

not preclude his passenger’s subsequent suit);

McGowan, 120 S.W.3d at 463 (parents’ suit in

individual and guardian capacity did not preclude

decedent child’s estate from bringing subsequent action

based on the same transaction); Fincher, 141 S.W.3d at

261 (no privity between parties alleging “identical facts

and theories of recovery,” where one party had an

interest in attorneys’ fees in addition to the parties’

joint interest in maximizing a qui tam recovery, with

result that venue determination as to one party did not

bind the other).

The Court declines to apply a holistic, judicial efficiency-based approach to privity because Texas cases have not done so.10 Notwithstanding the broad terms in which Texas cases describe privity, JDC does not cite any published Texas case that expressly found privity in the absence of the three traditional bases. Bound to follow Texas res judicata law, the Court does not consider it appropriate to break new ground in Texas law, even in the interest of furthering stated goals of Texas res judicata. Because JDC does not establish privity under any established criterion in Texas law, the state court judgment does not bind the EEOC. Accordingly, the Court denies the motion for summary judgment as to the EEOC.

V. CONCLUSION
*9 Intervenors’ Title VII suit is barred by a prior judgment in state court, because with diligence they could have brought it in the prior suit. However, the prior suit does not bar the EEOC’s Title VII suit on the same grounds, because the EEOC is not in privity with Intervenors. While this results in Intervenors indirectly receiving a second bite at the apple, which they could not accomplish directly, the Court has determined that Title VII and Texas res judicata law require it. Accordingly, the Court grants the motion to amend and denies the motion to intervene and the motion for summary judgment.
On September 20, 2005, JDC moved the Court to amend its prior Order to permit interlocutory appeal under 28 U.S.C. § 1292(b). The Court finds that the portion of this Order denying JDC’s motion for summary judgment involves a controlling issue of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from that portion of this Order may materially advance the ultimate termination of the litigation. The Court stays this action pending disposition by the Court of Appeals of any interlocutory appeal of the denial of JDC’s motion for summary judgment.
	  

7

 
 Case: 06-10090 Document: 0051222576 Page: 1 Date Filed: 02/12/2007

CHARLES R. FULBRUGE III CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

February 12, 2007

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing or
Rehearing En Banc No. 06-10090 EEOC v. Jefferson Dental
USDC No. 3:04-CV-1892 ---------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

The judgment entered provides that appellee pay to appellant the costs on appeal.
Sincerely, CHARLES R. FULBRUGE III, Clerk

By: Rhonda Flowers, Deputy Clerk

Enclosure Mr Ron Chapman Jr Mr Robert Elwood Sheeder Ms Denise Cotter Villani Ms Jennifer Susan Goldstein

Case: 06-10090 Document: 0051360207 Page: 1 Date Filed: 02/12/2007
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BILL OF COSTS
NOTE: The Bill of Costs is due in this office within 14 days from the date of the opinion, See FED. R. APP. P. & 5TH CIR. R. 39. Untimely bills of costs must be accompanied by a separate motion to file out of time, which the court may deny.
_______________________________________________ v. __________________________________________ No. _____________________
The Clerk is requested to tax the following costs against: _________________________________________________________________________________________

COSTS TAXABLE UNDER Fed. R. App. P. & 5th Cir. R. 39
Docket Fee ($250.00) Appendix or Record Excepts Appellant’s Brief Appellee’s Brief Appellant’s Reply Brief Other:

REQUESTED No. of Copies Pages Per Copy Cost per Page* Total Cost

ALLOWED (If different from amount requested)

No. of Documents

Pages per Document

Cost per Page* Total Cost

Total $ ________________

Costs are taxed in the amount of $ _______________

Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.

State of County of _________________________________________________

CHARLES R. FULBRUGE III, CLERK
By ____________________________________________ Deputy Clerk

I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.

*SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS

_____________________________________________________________________ (Signature)
Attorney for __________________________________________

Case: 06-10090 Document: 0051360207 Page: 2 Date Filed: 02/12/2007
FIFTH CIRCUIT RULE 39
39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.25 per page, including cover, index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5TH CIR. R. 32.2.3that mandates that briefs must lie reasonably flat when open shall be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.
39.2 Nonrecovery of Mailing and Commercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.
39.3 Time for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in FED. R. APP. P. 39(D). See 5TH CIR. R. 26.1.

FED. R. APP. P. 39.

COSTS

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.

©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying.

(d) Bill of costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate.

(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

Case: 06-10090 Document: 0051634111 Page: 1 Date Filed: 02/12/2007

United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

February 12, 2007

FOR THE FIFTH CIRCUIT _________________________

Charles R. Fulbruge III Clerk

No. 06-10090 _________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

versus

JEFFERSON DENTAL CLINICS, PA,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court for the Northern District of Texas (No. 3:04-CV-1892)
__________________________________________________

Before KING, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Before the court is an interlocutory appeal of the district court’s denial of summary judgment

to Jefferson Dental. We reverse in part and remand to the district court.

I. FACTS AND PROCEEDINGS

Jefferson Dental employs approximately 130 people. Four female former employees of

Jefferson Dental filed charges of discrimination with both the Equal Employment Opportunity

Commission (“EEOC”) and the Texas Commission on Human Rights (“TCHR”) alleging violations

of Title VII and the corresponding Texas Labor Code provisions. Specifically, three of them alleged

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Case: 06-10090 Document: 0051634111 Page: 2 Date Filed: 02/12/2007
that their supervisor had made sexual comments and had inappropriately touched them. The fourth charging party witnessed much of this behavior. Seventeen days after making the charge to the EEOC, these four charging parties filed a state court action against Jefferson Dental, its president, and one of its former employees. In this suit, the charging parties did not raise any statutory claims but instead brought tort claims for intentional infliction of emotional distress, negligent retention, and wrongful discharge. While discovery in the state court case was progressing, the EEOC filed an action in federal court seeking monetary and injunctive relief. One of the other state court defendants moved for a plea in abatement in the state court case, which Jefferson Dental joined. The charging parties, however, opposed this plea. The state court agreed and scheduled a trial. Prior to the state court trial, the parties attended a court-ordered mediation session. EEOC lawyers attended the session, which did not result in a settlement. EEOC lawyers also attended the trial and communicated with the lawyers for the charging parties. After the state court trial, the court entered a judgment in favor of Jefferson Dental; the four charging parties took nothing.
In the middle of the state court trial, the EEOC responded to discovery requests from Jefferson Dental in the federal case and objected to production of some of the documents. These documents, the EEOC argued, were correspondence with the charging parties’ attorneys and were protected by virtue of joint representation, the work product privilege, and the attorney-client privilege. The EEOC made similar objections to discovery on sixty-six occasions. The EEOC also objected to discovery on privacy grounds “on behalf of” the charging parties.
After losing the state court case, the charging parties moved to intervene in the EEOC’s federal case. Jefferson Dental opposed the motion. Jefferson Dental also moved for summary judgment on all of the EEOC’s claims, arguing that they were barred by the doctrine of res judicata.
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The district court denied the charging parties’ motion to intervene but also denied Jefferson Dental’s motion for summary judgment on the basis that the EEOC was not in privity with the charging parties and that, therefore, res judicata could not apply. The district court acknowledged that its decision permitted the parties to “indirectly receiv[e] a second bite at the apple, which they could not accomplish directly,” permitted an interlocutory appeal under 28 U.S.C. § 1292(b), and stayed the proceedings. This court granted leave for Jefferson Dental to appeal the order.
II. STANDARD OF REVIEW This court reviews the res judicata effect of a prior state court judgment de novo. See Schmueser v. Burkburnett Bank, 937 F.2d 1025, 1031 (5th Cir. 1991). The district court’s denial of summary judgment is reviewed de novo. See Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006). “Summary judgment is appropriate if the record shows ‘that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’” Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001) (quoting FED. R. CIV. P. 56(c)).
III. DISCUSSION Jefferson Dental argues that the district court erred in denying its motion for summary judgment because, under Texas law, the EEOC’s claims are barred by the doctrine of res judicata. The judgment in the charging parties’ case is a final Texas state court judgment. Federal courts give a Texas state court judgment “the preclusive effect it would be given under Texas law.” Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000) (citing Hogue v. Royse City, 939 F.2d 1249, 1252 (5th Cir. 1991)). Under Texas law, a party seeking to have an action dismissed on the basis of res judicata must establish the presence of three things: “(1) a prior final judgment on the merits by a court of
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Case: 06-10090 Document: 0051634111 Page: 4 Date Filed: 02/12/2007
competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). “The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex. 1992). The EEOC does not dispute that the state court judgment satisfies the first element. Because the district court determined that the EEOC and the charging parties were not in privity, thereby adjudicating the second element against a finding of res judicata, it did not reach the third element.
As to the second element, the application of res judicata to suits by those in privity with a prior party exists to “ensure that a defendant is not twice vexed for the same acts, and to achieve judicial economy by precluding those who have had a fair trial from relitigating claims.” Amstadt, 919 S.W.2d at 653. The Texas courts have been clear that there is no categorical rule for privity; instead the courts look to “the circumstances of each case.” Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992).1 There are at least three ways in which parties can be in privity under Texas law: “(1) they can control an action even if they are not parties to it; (2) their interests can be
1Texas caselaw treats privity for res judicata purposes and privity of contract differently. Issues involving privity of contract generally deal with whether or not parties can litigate particular actions in the absence of a contractual relationship. See, e.g., Am. Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, 484 (Tex. 1992) (“Under Texas law, attorneys are not ordinarily liable for damages to a nonclient, because privity of contract is absent.”). Privity for res judicata purposes, on the other hand, represents the court’s conclusion regarding the character of the relationship between two parties with respect to previously litigated issues. See Amstadt, 919 S.W.2d at 653 (“To determine whether subsequent plaintiffs are in privity with prior plaintiffs, we examine the interests the parties shared.”).
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represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action.” Amstadt, 919 S.W.2d at 653.
Jefferson Dental’s position is that the EEOC’s suit is barred by res judicata because (1) the EEOC raised objections on behalf of the charging parties and alleged an attorney-client relationship with the charging parties in the federal case, thus exhibiting control; (2) the EEOC participated in the mediation and trial of the charging parties’ claims in state court, thus exhibiting control; and (3) the federal suit uses the same factual basis as the state court suit, indicating representation of the EEOC’s interests at the state court trial. A. Control
Jefferson Dental argues that two types of actions taken by the EEOC indicate that the EEOC controlled the charging parties’ litigation. Under Texas law, “[i]n determining whether privity exists through control over a prior action, [the] courts have focused on whether an individual actively and openly participated in the prior proceedings to such an extent that it was clear that the individual had the right to direct them.” Maxson v. Travis County Rent Account, 21 S.W.3d 311, 316 (Tex. App. 1999), superseded by statute on other grounds as noted in Rice v. Louis A. Williams & Assocs., 86 S.W.3d 329, 333 n.2 (Tex. App. 2002). “[M]ere participation in a prior trial does not suffice to bar the participant on principles of res judicata, nor does knowledge of an ongoing trial.” Brown v. Zimmerman, 160 S.W.3d 695, 703 (Tex. App. 2005); see also State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 887 (Tex. App. 2001) (holding that “being copied on letters, attending depositions, and discussing available defenses” are insufficient bases to establish privity). (1) Evidentiary objections
Jefferson Dental argues that the EEOC asserted an attorney-client privilege with the charging
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parties and that therefore privity exists because “[u]nder Texas law, there is no attorney-client relationship absent a showing of privity.” Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1198 (5th Cir. 1995). Jefferson Dental’s assertion of attorney-client privilege during the federal case, however, does not indicate control of the state case. See Brown, 160 S.W.2d at 703 (noting that participation does not equal control).
Jefferson Dental also argues for privity on the basis that the EEOC raised privacy objections on behalf of the charging parties during discovery. Again, invoking this privilege in the federal action does not create privity. Doing so does not indicate control “to such an extent that it was clear that the [EEOC] had the right to direct [the state court case].” Maxson, 21 S.W.3d at 316. (2) Participation at mediation and trial
Jefferson Dental stresses that the EEOC’s attendance at the mediation in the state case, including giving a statement, and attendance at the trial, including consultation with the charging parties’ lawyers, establish privity. The EEOC’s role in the charging parties’ suit, however, does not establish control. Jefferson Dental states that two EEOC attorneys attended the mediation and at least one EEOC attorney attended the entire evidentiary portion of the trial, took notes, aided in jury selection, and communicated frequently with the charging parties and their attorneys. The EEOC explains that its lawyers attended the mediation so that Jefferson Dental could potentially settle all of the disputes at one time. This type of informal participation in the prior trial and mediation by the EEOC’s attorneys does not constitute control sufficient to establish privity. See Maxson, 21 S.W.3d at 316. The district court properly determined that the EEOC did not exercise control over the state court litigation so as to create privity with the charging parties. B. Representation of interests
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Case: 06-10090 Document: 0051634111 Page: 7 Date Filed: 02/12/2007
Under Texas law, the touchstone of the representation-of-interests inquiry is whether “the parties share an identity of interests in the basic legal right that is the subject of litigation. To determine whether a prior and later lawsuit involve the same basic subject matter, we focus on the factual basis of the complaint.” Amstadt, 919 S.W.2d at 653 (internal citation omitted). The interests, however, need not mirror one another. See id.
Jefferson Dental argues that the EEOC and the charging parties have sufficiently shared interests in the outcome of the litigation to amount to privity under Texas law. Jefferson Dental relies on Grimm v. Rizk, 640 S.W.2d 711, 715 (Tex App. 1982), and Dennis v. First State Bank of Texas, 989 S.W.2d 22, 27–28 (Tex. App. 1998). In Grimm, a trustee brought a suit on behalf of various individuals but lost, and the court found that the individuals were barred by res judicata from bringing an action on their own relating to the same subject matter. 640 S.W.2d at 715. In essence, Jefferson Dental argues that the EEOC is trying to do the same thing—re-litigating from the same factual basis after the charging parties have lost. See Dennis, 989 S.W.2d at 25, 27–28 (holding it was not an abuse of discretion to find that co-owners of a company who were also co-developers of a technology at issue in the case were in privity).
The EEOC emphasizes that, because it is pursuing its “statutory prerogative” to enforce laws protecting against workplace discrimination, it lacks privity with the charging parties. In essence, the EEOC’s argument hinges on the notion that it has different interests in the litigation than the charging parties did in the prior suit because of this goal of reducing discrimination. See Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 331 (1980) (noting that the interests of the EEOC and the charging parties are not always the same).
In EEOC v. Waffle House, the Supreme Court held that the EEOC was not bound by an
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Case: 06-10090 Document: 0051634111 Page: 8 Date Filed: 02/12/2007
arbitration agreement signed by the charging party and the defendant employer. 534 U.S. 279, 282–83, 298 (2002). After experiencing alleged discrimination based on a disability,2 the individual filed a charge with the EEOC. Id. at 283. He did not file an individual action or seek arbitration of his individual claim. Id. The EEOC filed an action against the employer, seeking injunctive relief, back pay, reinstatement, compensatory damages, and punitive damages. Id. at 283–84. The employer sought to compel arbitration or have the action dismissed based on the arbitration agreement, but the district court denied the motion. Id. at 284.
On interlocutory appeal, the Court of Appeals for the Fourth Circuit held that the EEOC was barred from pursuing an action for victim-specific relief but that the arbitration agreement between the charging party and the defendant did not foreclose injunctive relief. Id. at 284–85. The court of appeals based this distinction on the theory that the public interest served by the EEOC is “minimal” when it seeks victim-specific relief, whereas “when the EEOC is pursuing large-scale injunctive relief, the balance tips in favor of EEOC enforcement efforts in federal court because the public interest dominates the EEOC’s action.” Id. (internal quotation omitted).
The Supreme Court rejected this distinction, however, and held that “[a]bsent textual support for a contrary view, it is the public agency’s province—not that of the court—to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial
2While Waffle House is an ADA case, the Court made clear that Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when it is enforcing the ADA’s prohibitions against employment discrimination on the basis of disability. Accordingly, the provisions of Title VII defining the EEOC’s authority provide the starting point for our analysis. 534 U.S. at 285–86 (internal citation omitted).
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Case: 06-10090 Document: 0051634111 Page: 9 Date Filed: 02/12/2007
forum.” Id. at 291–92. The Court narrowed its holding, however, stating that “[i]t is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC’s claim or the character of relief the EEOC may seek. The only issue before this Court is whether the fact that [the individual] has signed a mandatory arbitration agreement limits the remedies available to the EEOC.” Id. at 297.
Jefferson Dental encourages this court to read Waffle House narrowly, as a case about whether an arbitration agreement between a charging party and an employer bars an action by the EEOC against the employer. The Supreme Court stated that “[i]f, for example, [an individual] had failed to mitigate his damages or had accepted a monetary settlement, any recovery by the EEOC would be limited accordingly.” Id. at 296. Jefferson Dental asks the court to extrapolate from this statement the principle that once the charging parties have had an opportunity to litigate their case, the EEOC’s ability to recover relief should be “limited accordingly” by not permitting a second action at all under res judicata.
The EEOC, on the other hand, argues that under Waffle House the EEOC’s interest “in eradicating workplace discrimination” is unique and “incompatible with a finding that the EEOC’s authority to bring and maintain an enforcement action can be extinguished by a judgment in a private suit to which it was not a party.” This court agrees with the EEOC’s position.
The parties discuss two Fifth Circuit cases that, while not directly on point, generally support our position and merit discussion. In United States v. Mississippi Department of Public Safety, this court considered whether or not state sovereign immunity prevented the United States from suing a Mississippi agency for violating the ADA by refusing to make reasonable accommodations for a particular individual, seeking both injunctive and monetary relief. 321 F.3d 495, 497 (5th Cir. 2003).
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Case: 06-10090 Document: 0051634111 Page: 10 Date Filed: 02/12/2007
The agency argued that Eleventh Amendment state sovereign immunity should bar the action because “the federal government [had sought] to circumvent the safeguards of the Eleventh Amendment and obtain personal relief for private individuals.” Id. at 498. Citing Waffle House, the court stated:
[T]he federal government has the responsibility to determine when it is in the public interest to sue to vindicate federal law via victim-specific relief. . . . The fact that [the individual] could not sue the [state agency] for the alleged violation of the law in no way diminishes the United States’ interest in the action or the authority of the United States to bring suit against the [state agency] for the benefit of the public generally and for [the individual’s] benefit specifically. Nor does it transform the United States into a mere proxy for [the individual]. Id. at 499 (internal citation omitted). In the state sovereign immunity context, therefore, this court has been willing to permit an action by the EEOC that would not have been permitted by a private party. On the other hand, in Vines v. University of La. at Monroe, the Fifth Circuit, in a dispute under the ADEA rather than the ADA, applying federal res judicata principles, held that the individual plaintiffs and the EEOC were in privity because “[w]hen the EEOC seeks private benefits for individuals under the ADEA, it takes on representative responsibilities that places it in privity with those individuals.” 398 F.3d 700, 707 (5th Cir. 2005); see also Jones v. Bell Helicopter Co., 614 F.2d 1389, 1391 (5th Cir. 1980) (upholding dismissal of charging party’s suit following EEOC suit based on federal res judicata principles even though the party “did not deserve to be penalized by the E.E.O.C.’s failure to provide decent governmental process”), abrogated on other grounds by United States v. Popovich, 820 F.2d 134 (5th Cir. 1987). The Vines court, however, acknowledged that “the EEOC’s role differs when it seeks to enjoin discrimination against an entire class or attempts to protect a broader interest than simply that of the individual plaintiff.” 398 F.3d at 707. In such situations, “there is a clear divergence of
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interests between the EEOC and the aggrieved individual.” Id. The Vines court noted that the EEOC was not seeking to further such an independent interest, see id., unlike the EEOC is doing here.
Furthermore, the Supreme Court in Waffle House cited approvingly to EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987). 534 U.S. at 311. In Goodyear Aerospace, the Ninth Circuit drew a distinction between the EEOC’s actions for an injunction and back pay in a res judicata case involving the preclusive effect of a settlement reached by the charging party and the defendant. 813 F.2d at 1543. The court refused to moot the EEOC’s claims for “injunctive relief to protect employees as a class” but mooted the back pay claim on the basis that “the public interest in a back pay award is minimal.” Id.
The Waffle House majority would likely have permitted the EEOC to bring a claim for injunctive relief, had this issue been before the Court.3 See 534 U.S. at 291 (“The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.”). In his dissent, Justice Thomas also stated that “to the extent the EEOC seeks broad-based declaratory and equitable relief in court, the Commission undoubtedly acts both as a representative of a specific employee and to vindicate the public interest in preventing employment discrimination.” Id. at 306 (internal quotation omitted). Given the divergence of interests between the charging parties and the EEOC when it seeks injunctive relief, this court will permit the injunctive relief claims by the EEOC.
In the context of make-whole relief, however, the interests of the EEOC stack up poorly
3Justice Thomas in his dissent in Waffle House notes that “[t]he Court of Appeals concluded that [the individual]’s arbitration agreement did not preclude the EEOC from seeking such broad-based relief, and Waffle House has not appealed that ruling.” 534 U.S. at 300 n.2. The Supreme Court in Waffle House, therefore, only directly addressed victim-specific relief.
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against the principle of res judicata. The reasoning in Justice Thomas’s Waffle House dissent is persuasive in the res judicata context. “[W]hen the EEOC is seeking [victim-specific] remedies, it is only serving the public interest to the extent that an employee seeking the same relief for himself through litigation or arbitration would also be serving the public interest.” 534 U.S. at 307 n.10. Justice Thomas noted the curious situation, relevant here, that the majority’s reasoning suggests that the EEOC could pursue victim-specific relief after the charging party had reached a settlement, which “would contradict this Court’s [prior] suggestion . . . that employment discrimination disputes can be settled without any EEOC involvement.” Id. at 312 (internal quotation omitted); see also Truvillion v. King’s Daughters Hosp., 614 F.2d 520, 525 (5th Cir. 1980) (“[T]he E.E.O.C. may not bring a second suit based on the transactions that were the subject of a prior suit by a private plaintiff, unless the E.E.O.C. seeks relief different from that sought by the individual.”) (citing EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir. 1975)).
The EEOC’s public interest does not justify giving the plaintiffs two chances to receive makewhole relief. The Supreme Court in Waffle House stated that if the individual plaintiff “had accepted a monetary settlement, any recovery by the EEOC would be limited accordingly,” and “it goes without saying that the courts can and should preclude double recovery by an individual.” 534 U.S. at 296–97 (internal quotation omitted). In addition, the EEOC’s claims arise out of the same subject matter as the state court case. The three elements of res judicata are therefore satisfied with respect to the claims for make-whole relief, and these claims are barred by the doctrine of res judicata.
IV. CONCLUSION This court holds that the EEOC serves a public interest sufficiently independent of the charging parties to avoid a finding of privity under Texas law when it seeks injunctive and equitable
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Case: 06-10090 Document: 0051634111 Page: 13 Date Filed: 02/12/2007 relief. In seeking damages and any other make-whole relief, the EEOC’s interests are not sufficiently independent to avoid being in privity with the charging parties. The order denying summary judgment to Jefferson Dental is REVERSED IN PART. As this matter is before the court on interlocutory appeal rather than final judgment, we REMAND to the district court (1) with instructions to enter summary judgment in favor of Jefferson Dental with respect to sections D, E, and F of the complaint and (2) for further proceedings not inconsistent with this opinion with respect to the remainder of the complaint.
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 Case: 06-10090 Document: 0051349360 Page: 1 Date Filed: 05/11/2007

:. ai
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No . 06-10090

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v~ ~

Plaintiff - Appellee v.

On S . COURT OF AP :I~f~S a41~
` F1 L

JEFFERSON DENTAL CLINICS, PA

MAY 1 i 2007

~..

Defendant - Appellant

CHARLES R. FULBRUG E Ill _. CLERK

---------------------

Appeal from the United States District Court for the

Northern District of Texas ; Dallas

---------------------

ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion 2/12/07, 5 Cir .,

F . 3d

Before KING, WIENER, and CLEMENT, Circuit Judges .
PER CURIAM :
( V ) The Petition for Rehearing is DENIED and no member of this panel nor judge in regular active service on the court having requested that the court be polled on Rehearing En Banc, (FED . R . App . P . and ST" CIR . R . 35) the Petition for Rehearing En Banc is also DENIED .
( ) The Petition for Rehearing is DENIED and the court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor, (FED . R . App . P . and 5TH CIR . R . 35) the Petition for Rehearing En Banc is also DENIED .

Case: 06-10090 Document: 0051349360 Page: 2 Date Filed: 05/11/2007
, . -1, ( } A member of the court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service and not disqualified not having voted in favor, Rehearing En Banc is DENIED .
ENTERED FOR THE COURT :
United-States Circuit Judgee REHG-4A

.,

q t

D LOCAL Ns 5'"`r. .`.

R1, LES 41 FOR STAY OF THE

Case: 06-10090 Document: 0051238622 Page: 1 Date Filed: 05/11/2007

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK

CHARLES R. FULBRUGE III CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

May 11, 2007 MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 06-10090 EEOC v. Jefferson Dental USDC No. 3:04-CV-1892
Enclosed is an order entered in this case.
Sincerely, CHARLES R. FULBRUGE III, Clerk
By: Dawn Shulin, Deputy Clerk 504-310-7658
Mr Ron Chapman Jr Mr Robert Elwood Sheeder Ms Jennifer Susan Goldstein MOT-2

 
 Case: 3:04-cv-1892 As of: 06/12/2018 02:16 PM CDT 1 of 6
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:04−cv−01892−N

CLOSED,JURY

Equal Employment Opportunity Commission v. Jefferson Dental Date Filed: 08/30/2004

Clinics, PA

Date Terminated: 05/23/2008

Assigned to: Judge David C Godbey

Jury Demand: Plaintiff

Cause: 28:1331 Fed. Question: Employment Discrimination Nature of Suit: 442 Civil Rights:

Employment

Jurisdiction: U.S. Government Defendant

Plaintiff

Equal Employment Opportunity Commission

represented by Suzanne M Anderson Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214−253−2740 Fax: 214−253−2749 FAX Email: suzanne.anderson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joel Philip Clark EEOC 207 S Houston St 3rd Floor Dallas, TX 75202 214−253−2743 Fax: 214−253−2749 Email: joel.clark@eeoc.gov ATTORNEY TO BE NOTICED

Robert A Canino , Jr Equal Employment Opportunity Commission Dallas District Office 207 S Houston St 3rd Floor Dallas, TX 75202 214−253−2750 Fax: 214−253−2749 Email: robert.canino@eeoc.gov ATTORNEY TO BE NOTICED

Ronetta J Francis Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253−2746 Fax: 214/253−2749 FAX Email: Ronetta.Francis@eeoc.gov TERMINATED: 10/04/2007

William C Backhaus Equal Employment Opportunity Commission 207 S Houston

Case: 3:04-cv-1892 As of: 06/12/2018 02:16 PM CDT 2 of 6
3rd Floor Dallas, TX 75202 214/253−2742 Fax: 214/253−2749 FAX Email: william.backhaus@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Jefferson Dental Clinics, PA

represented by Ron W Chapman , Jr Ogletree Deakins Nash Smoak & Stewart PC 8117 Preston Road, Suite 500 Dallas, TX 75225−4324 214/987−3800 Fax: 214/987−3927 Email: ron.chapman@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise C Villani Ogletree Deakins Nash Smoak & Stewart PC 8117 Preston Road, Suite 500 Dallas, TX 75225−4324 214/987−3800 Fax: 214/987−3927 Email: denise.villani@ogletreedeakins.com ATTORNEY TO BE NOTICED

V. Movant Carol Cantu
Movant Linda Housholder
Movant Esmeralda Jimenez
Movant Heather Sooter

represented by Theodore Carl Anderson , III Kilgore & Kilgore PLLC 3109 Carlisle, Suite 200 Dallas, TX 75204 214−969−9099 Fax: 214−953−0133 Email: tca@kilgorelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theodore Carl Anderson , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theodore Carl Anderson , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Theodore Carl Anderson , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-1892 As of: 06/12/2018 02:16 PM CDT 3 of 6

Date Filed 08/30/2004 08/30/2004 08/30/2004 09/01/2004 09/29/2004 10/04/2004
10/20/2004 10/28/2004 11/04/2004
11/04/2004 11/29/2004 01/04/2005 01/24/2005 02/08/2005
02/08/2005 02/08/2005 03/09/2005 03/09/2005 03/11/2005

# Docket Text
1 COMPLAINT with jury demand against Jefferson Dental Clinics, PA , filed by Equal Employment Opportunity Commission.(aat, ) (Entered: 08/31/2004)
***Magistrate Judge Ramirez chosen by random selection to handle matters that may be referred in this case. (aat, ) (Entered: 08/31/2004)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Equal Employment Opportunity Commission. (aat, ) (Entered: 08/31/2004)
3 Summons Issued as to Jefferson Dental Clinics, PA. (aat, ) (Entered: 09/02/2004)
4 ANSWER to Complaint by Jefferson Dental Clinics, PA.(svc, ) (Entered: 09/30/2004)
5 ORDER REQUIRING STATUS AND SCHEDULING CONFERENCE. The parties are directed to confer within 14 days of the date of this order and to report to the court within 14 days of the conference. (Signed by Judge David C Godbey on 10/4/04) (aat, ) (Entered: 10/05/2004)
6 NOTICE of designation of lead attorney by Ronetta J Francis on behalf of Equal Employment Opportunity Commission (aat, ) (Entered: 10/21/2004)
7 JOINT STATUS REPORT by Equal Employment Opportunity Commission, Jefferson Dental Clinics, PA. (aat, ) (Entered: 10/29/2004)
8 ORDER REGARDING INTENTION TO ADMINISTER CASE ELECTRONICALLY. The parties have agreed that this case is an appropriate candidate for the Court's Electronic Case Files (ECF) pilot project. The completed registration forms shall be submitted no later than 15 days from the date of this order. (Signed by Judge David C Godbey on 11/4/4) (aat, ) (Entered: 11/05/2004)
9 SCHEDULING ORDER: Docket call set for 3/6/2006 before Judge David C Godbey. (Signed by Judge David C Godbey on 11/4/4) (aat, ) (Entered: 11/05/2004)
10 Order Designating Case for ECF − see order for specifics. (Signed by Judge David C Godbey on 11/29/04) (dzh, ) (Entered: 11/29/2004)
11 MOTION to Intervene by Carol Cantu, Linda Housholder, Esmeralda Jimenez, Heather Sooter (aat, ) (Entered: 01/05/2005)
12 Defendant's RESPONSE to 11 MOTION to Intervene filed by Jefferson Dental Clinics, PA. (skt, ) (Entered: 01/26/2005)
13 ***REFILED as doc. #14*** MOTION to Intervene Reply by Heather Sooter (Attachments: # 1 Exhibit Exhibit A to Reply to Defendant's Response to Motion for Leave to Intervene# 2 Exhibit Exhibit B to Reply to Defendant's Response to Motion for Leave to Intervene# 3 Exhibit Exhibit C to Reply to Defendant's Response to Motion for Leave to Intervene# 4 Exhibit Exhibit D to Reply to Defendant's Response to Motion for Leave to Intervene)(Anderson, Theodore) Modified on 2/9/2005 (skt, ). (Entered: 02/08/2005)
NOTICE of Docket Text/Document Modification by Deputy Clerk regarding MOTION to Intervene/Reply document 13 ; Wrong docket event used, re−docketed using correct event. (skt, ) (Entered: 02/09/2005)
14 REPLY to Response to 11 MOTION to Intervene filed by Heather Sooter. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(skt, ) (Entered: 02/09/2005)
15 MOTION for Leave to File Its First Amended Answer by Jefferson Dental Clinics, PA (Chapman, Ron) (Entered: 03/09/2005)
16 Vacation Letter as to Theodore Anderson for dates March 14 − March 18, 2005. (Anderson, Theodore) Modified on 3/10/2005 (skt, ). (Entered: 03/09/2005)
17 MOTION for Summary Judgment by Jefferson Dental Clinics, PA (Chapman, Ron) (Entered: 03/11/2005)

Case: 3:04-cv-1892 As of: 06/12/2018 02:16 PM CDT 4 of 6

03/11/2005 03/11/2005 03/29/2005
03/31/2005 03/31/2005 03/31/2005 04/13/2005 04/15/2005 04/18/2005 04/18/2005
07/11/2005 07/11/2005 07/11/2005 08/26/2005 09/07/2005 09/19/2005 09/20/2005
10/11/2005

18 Memorandum in Support re 17 MOTION for Summary Judgment filed by Jefferson Dental Clinics, PA. (Chapman, Ron) (Entered: 03/11/2005)
19 Appendix in Support re 17 MOTION for Summary Judgment and Brief in Support filed by Jefferson Dental Clinics, PA. (Attachments: # 1 Appendix # 2 Appendix # 3 Appendix # 4 Appendix)(Chapman, Ron) (Entered: 03/11/2005)
20 RESPONSE in Opposition re 15 MOTION for Leave to File Its First Amended Answer filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Charge of Discrimination# 2 Exhibit Original Petition# 3 Exhibit LOD)(Francis, Ronetta) (Entered: 03/29/2005)
21 RESPONSE in Opposition filed by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 03/31/2005)
22 Memorandum in Support re 21 Response in Opposition Defendant's Motion For Summary Judgment filed by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 03/31/2005)
23 Appendix in Support re 21 Response in Opposition Defendants Motion For Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7)(Francis, Ronetta) (Entered: 03/31/2005)
24 Memorandum in Support re 15 MOTION for Leave to File Its First Amended Answer filed by Jefferson Dental Clinics, PA. (Chapman, Ron) (Entered: 04/13/2005)
25 ***REDOCKETED***Memorandum in Support re 17 MOTION for Summary Judgment filed by Jefferson Dental Clinics, PA. (Chapman, Ron) Modified on 4/18/2005 (skt, ). (Entered: 04/15/2005)
26 Defendant's REPLY in Support of It's 17 MOTION for Summary Judgment filed by Jefferson Dental Clinics, PA. (skt, ) (Entered: 04/18/2005)
NOTICE of Docket Text/Document Modification by Deputy Clerk regarding Defendant's Memorandum in Support of Motion for Summary Judgment. Document 25 was docketed using the wrong event; it should have been docketed under reply to response to motion event; this document had been redocketed as 26 . (skt, ) (Entered: 04/18/2005)
27 Memorandum in Support re 11 MOTION to Intervene filed by Carol Cantu, Linda Housholder, Esmeralda Jimenez, Heather Sooter. (Attachments: # 1)(Anderson, Theodore) (Entered: 07/11/2005)
28 Memorandum in Support re 22 Response in Support of Motion Opposing Defendant's Motion For Summary Judgment filed by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 07/11/2005)
29 Supplemental Document by Jefferson Dental Clinics, PA as to 18 Response in Support of Motion for Summary Judgment. (Chapman, Ron) (Entered: 07/11/2005)
30 Agreed MOTION to Stay re 9 Scheduling Order to Stay Discovery by Equal Employment Opportunity Commission, Jefferson Dental Clinics, PA (Chapman, Ron) (Entered: 08/26/2005)
31 Memorandum Opinion and Order. The Court grants the motion to amend and denies the motion to intervene and the motion for summary judgment. (See Order for specifics) (Signed by Judge David C Godbey on 9/7/05) (skt, ) (Entered: 09/08/2005)
32 ORDER denying as moot 30 Agreed Motion to Stay Discovery. (See Order for specifics) (Signed by Judge David C Godbey on 9/16/05) (skt, ) (Entered: 09/19/2005)
33 MOTION to Amend/Correct 31 Memorandum Opinion and Order to Allow Interlocutory Appeal and to Stay Proceedings and Brief in Support by Jefferson Dental Clinics, PA (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Text of Proposed Order)(Chapman, Ron) (Entered: 09/20/2005)
34 RESPONSE in Opposition to Defendant's Motion Seeking Interlocutory Appeal filed by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 10/11/2005)

Case: 3:04-cv-1892 As of: 06/12/2018 02:16 PM CDT 5 of 6

10/11/2005 10/25/2005 11/09/2005 11/10/2005
11/10/2005 11/14/2005 11/17/2005 02/01/2006 02/03/2006
02/03/2006 02/03/2006 02/08/2006 02/10/2006 02/10/2006 02/13/2006 02/21/2006 04/04/2006 09/11/2006 05/29/2007 05/29/2007

35 RESPONSE in Opposition to Defendant's Motion Seeking Interlocutory Appeal and Incorporated Brief filed by Equal Employment Opportunity Commission. (Francis, Ronetta) (Entered: 10/11/2005)
36 REPLY to Response to Motion re 33 MOTION to Amend/Correct 31 Memorandum Opinion and Order to Allow Interlocutory Appeal and to Stay Proceedings and Brief in Support filed by Jefferson Dental Clinics, PA. (Chapman, Ron) (Entered: 10/25/2005)
37 PROOF of Service for Subpoena served on Kilgore & Kilgore, PLLC on 11/4/2005. (skt, ) (Entered: 11/10/2005)
38 Amended Memorandum Opinion and Order. The Court stays this action pending disposition by the Court of Appeals of any interlocutory appeal of the denial of JDC's motion for summary judgment. (See Order for specifics) (Signed by Judge David C Godbey on 11/10/05) (skt, ) (Entered: 11/14/2005)
39 PROOF of Service for Subpoena served on AAA on 11/8/05. (skt, ) (Entered: 11/15/2005)
40 PROOF of Service for Subpoena served on Jeff Cantu on behalf of Cantu Construction Company on 11/8/2005. (skt, ) (Entered: 11/16/2005)
41 Order Designating Case for ECF − see order for specifics. (Signed by Judge David C Godbey on 11/17/05) (skt, ) (Entered: 11/17/2005)
Appeal fee has been paid, receipt no. 227409, $255.00 per 42 USCA Order, filed by Jefferson Dental Clinics, PA. (jmr) (Entered: 02/10/2006)
42 USCA Order re 38 Memorandum Opinion and Order, filed by Jefferson Dental Clinics, PA. Leave to appeal from the interlocutory order of the U. S. District Court for the Northern District of Texas, Dallas, entered on November 14, 2005, is GRANTED. Also included is USCA letter with instructions on proceeding with the appeal (jmr) **PDF was incorrect and has been corrected. (Entered: 02/07/2006)
Appeal number is 06−10090 re 42 Remark, 38 Memorandum Opinion and Order, filed by Jefferson Dental Clinics, PA. (jmr) (Entered: 02/07/2006)
NOTICE OF APPEAL as to 38 Memorandum Opinion and Order, 42 USCA Order Granting Interlocutory Appeal by Jefferson Dental Clinics, PA. (jmr) Filing fee already paid. Modified on 9/12/2006 (jmr). (Entered: 09/12/2006)
43 Transcript Order Form by attorney for Jefferson Dental: transcript not requested re Notice of Appeal. There were no hearings. (Chapman, Ron) Corrected text. Modified on 9/12/2006 (jmr). (Entered: 02/08/2006)
NOTICE of Docket Text/Document Modification by Deputy Clerk regarding bad PDF in doc. 42 USCA Order. PDF has been corrected. (jmr) (Entered: 02/10/2006)
44 ORDER...It is hereby ordered that all matters in this case are STAYED pending the resolutionof defendant's interlocutory appeal. (Signed by Judge David C Godbey on 2/10/06) (svc, ) (Entered: 02/10/2006)
Certified record on appeal re 42 USCA Order, filed by Jefferson Dental Clinics, PA.: 3 vol. electronic record. (jmr) (Entered: 02/13/2006)
45 Certified Record on Appeal transferred to Ron W. Chapman Jr. for Jefferson Dental Clinics, PA. 3 vol. electronic record. (jmr) (Entered: 02/21/2006)
46 NOTICE of Transfer of the Appeals Record from Ron Chapman, attorney for Jefferson Dental Clinics, PA to Jennifer Goldsten, attorney for EEOC in Washington, DC, re 38 Memorandum Opinion and Order. (jmr) (Entered: 04/04/2006)
47 NOTICE of Transfer from USCA5 of Appeal Record to Ron Chapman, attorney for Jefferson Dental Clinics, PA re Notice of Appeal. (jmr) (Entered: 09/12/2006)
Appeal Record Returned: Electronic record has been recycled. (jmr) (Entered: 05/30/2007)
48 Opinion of USCA (certified copy) in accordance with USCA judgment re Notice of Appeal filed by Jefferson Dental Clinics, PA. Reversed in part, Remand in part. See

Case: 3:04-cv-1892 As of: 06/12/2018 02:16 PM CDT 6 of 6

05/29/2007
05/29/2007 08/13/2007 10/04/2007
01/25/2008 03/04/2008 03/04/2008 05/21/2008 05/23/2008

Opinion for specifics. (jmr) (Entered: 05/30/2007)
49 JUDGMENT/MANDATE of USCA as to Notice of Appeal filed by Jefferson Dental Clinics, PA. Issued as Mandate: 5/21/07. The order of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court... Appellee pay to appellant the costs on appeal. (jmr) (Entered: 05/30/2007)
50 USCA BILL OF COSTS against Equal Employment Opportunity Commission. (jmr) (Entered: 05/30/2007)
51 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission (Francis, Ronetta) (Entered: 08/13/2007)
52 ORDER granting 51 Plaintiff's Motion to Withdraw and Substitute Counsel. Added attorney Suzanne M Anderson for Equal Employment Opportunity Commission. Attorney Ronetta J Francis terminated. (Signed by Judge David C Godbey on 10/4/07) (klm) (Entered: 10/05/2007)
53 AMENDED SCHEDULING ORDER: Jury Trial set for 7/28/2008 before Judge David C Godbey. The setting is for a one week docket. See order for other deadlines. (Signed by Judge David C Godbey on January 25, 2008) (jyg) (Entered: 01/25/2008)
54 NOTICE of Attorney Appearance by Joel Philip Clark on behalf of Equal Employment Opportunity Commission. (Clark, Joel) (Entered: 03/04/2008)
55 NOTICE of Attorney Appearance by William C Backhaus on behalf of Equal Employment Opportunity Commission. (Backhaus, William) (Entered: 03/04/2008)
56 CONSENT DECREE. (See Order for specifics) (Signed by Judge David C Godbey on 5/20/08) (skt) (Entered: 05/21/2008)
57 ORDER OF ADMINSTRATIVE DISMISSAL: A Consent Decree was filed in this case on May 21, 2008. Accordingly, this case is administratively closed for statistical purposes without prejudice. (Signed by Judge David C Godbey on 5/23/2008) (axm) (Entered: 05/23/2008)

 
    General  Docket   United  States  Court  of  Appeals  for  the  Fifth  Circuit  

Court of Appeals Docket #: 06-10090 Nature of Suit: 2442 Jobs (Civil Rights) EEOC v. Jefferson Dental Appeal From: Northern District of Texas, Dallas Fee Status: Fee Paid
  
Case Type Information: 1) Civil Rights 2) United States 3)

Docketed: 01/24/2006 Termed: 02/12/2007

  

Originating Court Information:

District: 0539-3 : 3:04-CV-1892

Originating Judge: David C. Godbey, U.S. District Judge

Date Filed: 08/30/2004

Date NOA Filed:

Date Rec'd COA:

01/24/2006
  

01/24/2006

Prior Cases: None
  
Current Cases: None
  

Panel  Assignment:               Panel:  CDK          JLW          EBC             Date  of  Hearing:  11/08/2006            Date  of  Decision:  02/12/2007            Date  Completed:  02/12/2007  

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellee

Jennifer Susan Goldstein Direct: 202-663-4733 Email: jennifer.goldstein@eeoc.gov Fax: 202-663-7090 [COR LD NTC Retained] U.S. Equal Employment Opportunity Commission Office of Legal Counsel 1801 L Street, N.W. Washington, DC 20507

Robert A. Canino, Jr. [NTC Government]

Equal Employment Opportunity Commission 3rd Floor 207 S. Houston Street Dallas, TX 75202-0000
Ronetta J. Francis Direct: 214-655-3300 Fax: 214-655-3331 [NTC Government] Equal Employment Opportunity Commission 3rd Floor 207 S. Houston Street Dallas, TX 75202-0000
v.

JEFFERSON DENTAL CLINICS, PA Defendant - Appellant

Ronald Wayne Chapman, Jr. Direct: 214-369-9216 Email: ron.chapman@ogletreedeakins.com Fax: 214-987-3927 [COR LD NTC Retained] Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Suite 500 8117 Preston Road Preston Commons, W. Dallas, TX 75225

Denise Cotter Villani Direct: 214-987-3800 Email: denise.villani@ogletreedeakins.com Fax: 214-987-3927 [COR NTC Retained] Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Suite 500 8117 Preston Road Preston Commons, W. Dallas, TX 75225
  
EQUAL  EMPLOYMENT  OPPORTUNITY  COMMISSION,                                                  Plaintiff  -­  Appellee      v.      JEFFERSON  DENTAL  CLINICS,  PA,    

                                             Defendant  -­  Appellant  

01/24/2006

Civil rights case docketed. NOA filed by Appellant Jefferson

48 pg, 2.19 MB Dental. [06-10090] ( Former Employee )

02/01/2006

Fee paid by Appellant Jefferson Dental. [06-10090] Fee ddl satisfied. (AGL)

02/01/2006

Request issued to district court to certify the record on appeal. Notice of Certified ROA due on 2/16/06. [06-10090] (AGL)

02/01/2006

Appearance form filed by Denise Cotter Villani for Appellant Jefferson Dental, Ron Chapman for Appellant Jefferson Dental. [06-10090] ( No. of forms filed: 2) ( Former Employee )

02/09/2006

Notice received from Appellant Jefferson Dental that transcript is unnecessary (no hearings). [06-10090] (AGL)

02/13/2006

Notice received from District Court, ROA certified. Electronic Pleadings: y [06-10090] Certified ROA due ddl satisfied. (GRM)

02/14/2006

Briefing notice issued. [06-10090] A/Pet's Brief due on 3/27/06 for

3 pg, 16.21 KB Jefferson Dental. (GRM)

03/27/2006

Appellant's Brief filed by Appellant Jefferson Dental. Date of

46 pg, 176.91 KB COS: 3/24/06 Disk Provided [Y/N]: y [5408759-1] [06-10090]

A/Pet's Brief ddl satisfied. E/Res's Brief due on 4/26/06 for EEOC.

(RFP)

03/27/2006

Record excerpts filed by Appellant Jefferson Dental. [06-10090]

58 pg, 2.57 MB (RFP)

04/04/2006

Unopposed motion filed by Texas Association of Business' to file

5 pg, 206.04 KB amicus brief in support of Jefferson Dental [5414797-1] Date of

COS: 4/3/06 Sufficient [Y/N]: Y [06-10090] ( Former Employee )

04/04/2006
2 pg, 67.07 KB

CLERK Order filed granting unopposed motion to file amicus brief by Texas Association of Business [5414797-1] Copies to all counsel. [06-10090] ( Former Employee )

04/04/2006

Amicus curiae brief filed by Amicus Curiae TX Assn of Business

14 pg, 139.55 KB Consent included in brief? [Y/NA] NA Date of COS: 4/3/06 Disk

Provided [Y/N]: N [5414858-1] [06-10090] ( Former Employee )

04/19/2006

Phone extension confirmed for Appellee EEOC for filing appellee's brief. Extension granted to and including 5/3/06. [0610090] E/Res's Brief ddl updated to 5/3/06 for EEOC. (MCS)

04/24/2006

Appearance form filed by Jennifer Susan Goldstein for Appellee EEOC, Appellee EEOC. [06-10090] ( No. of forms filed: 1) (RFP)

04/25/2006

Appearance form filed by Robert Elwood Sheeder for Amicus Curiae TX Assn of Business. [06-10090] ( No. of forms filed: 1) ( Former Employee )

05/08/2006

Appellee's Brief filed by Appellee EEOC. Date of COS: 5/3/06

39 pg, 176.5 KB Disk Provided [Y/N]: y [5443080-1] [06-10090] E/Res's Brief ddl

satisfied. Reply Brief due on 5/22/06 for Jefferson Dental. (RFP)

05/08/2006

Record on appeal filed. Vol(s) of Electronic Pleadings: 3 [0610090] (GRM)

05/23/2006

Reply brief filed by Appellant Jefferson Dental. Disk Provided

23 pg, 834.55 KB [Y/N]: y [5456782-1] [06-10090] Reply Brief ddl satisfied. ,

(GRM)

08/16/2006

Case tentatively calendared for oral argument Week of: 11/06/06.

1 pg, 9.58 KB [06-10090] (PFT)

08/29/2006

Record on appeal released to attorney Ron Chapman for Appellant Jefferson Dental via fed ex. Volumes: 3. [06-10090] (JRD)

09/06/2006

Record on appeal returned to 5CCA. Volumes: 3 [06-10090] (JRD)

09/11/2006

Supplemental authorities (FRAP 28(j)) filed by Appellant Jefferson

6 pg, 418.47 KB Dental. [5553610-1] [06-10090] (PFT)

09/20/2006

Case calendared for oral argument. [06-10090] (PFT)

1 pg, 11.53 KB

11/08/2006

Oral argument heard. Case argued by Ron Chapman for Appellant Jefferson Dental, Jennifer Susan Goldstein for Appellee EEOC, Appellee EEOC [06-10090] (PFT)

01/12/2007

Record on appeal returned to 5CCA. Volumes: 3 [06-10090] (SDH)

02/12/2007

Opinion filed. Issd in T form? Y Mandate pull date is 4/5/07. [06-

16 pg, 80.98 KB 10090] (RMF)

02/12/2007

Judgment entered and filed. [06-10090] (RMF)

1 pg, 8.83 KB

03/01/2007

Untimely bill of costs received from Appellant Jefferson Dental

2 pg, 83.11 KB [5690653-1]. [06-10090] (JRD)

03/12/2007

Unopposed motion filed by Appellant Jefferson Dental to file bill of cost out of time [5698722-1] Date of COS: 3/9/07 Sufficient [Y/N]: Y [06-10090] (JRD)

03/13/2007

CLERK Order filed granting appellant's unopposed motion to file

6 pg, 114.71 KB Bill of Costs out of time [5698722-1] Copies to all counsel. [06-

10090] (JRD)

03/13/2007

Bill of costs filed by Appellant Jefferson Dental. Sufficient [Y/N]:

1 pg, 75.28 KB Y . [5701997-1] [06-10090] (JRD)

03/29/2007
31 pg, 1.2 MB

Petition filed by Appellee EEOC for rehearing en banc. # of copies filed: 21 [5713573-1] Mandate pull date canceled. Date of COS: 3/28/07 Sufficient [Y/N]: y [06-10090] (RFP)

03/29/2007

Petition filed by Appellee EEOC for rehearing. # of copies filed: 4

31 pg, 1.21 MB [5713576-1] Date of COS: 3/28/07 Sufficient [Y/N]: y [06-10090]

(RFP)

05/11/2007
3 pg, 70.39 KB

COURT Order filed denying petition for rehearing [5713576-1], denying petition for rehearing en banc [5713573-1] With poll (Y/N)?: N Mandate pull date is 5/18/07. Copies to all counsel. [0610090] (DMS)

05/21/2007

Mandate issued. Approved BOC Issued (Y/N)?: Y [06-10090]

1 pg, 9.76 KB Mandate pull date satisfied. (DMS)

05/21/2007

Record on appeal recycled. [06-10090] (DMS)

	  

 
 "

United States Court of Appeals Fifth Circuit

UNITED STATES COURT OF APPEALS F I LED

February 12, 2007

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 06-10090

D.C. Docket No. 3:04-CV-1892 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Plaintiff - Appellee

v.

JEFFERSON DENTAL CLINICS, PA

Defendant - Appellant
Appeal from the United States District Court for the Northern District of Texas, Dallas.

.~.

Before KING, WIENER, and CLEMENT, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and was argued by counsel.

It is ordered and adjudged that the order of the District Court is reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.

IT IS FURTHER ORDERED that plaintiff-appellee pay to defendant-appellant the costs on appeal to be taxed by the Clerk of this Court.

ISSUED AS MANDATE: MAY 2 1 2007

A True Copy Attest
Clerk, U.S. Court of Appeals, Fifth Circuit
By:~.!..u:n~
Deputy
New Orleans, Louisiana

United States Court ofAppeals
FIFTH CIRCUIT OFFICE OF THE CLERK
CHARLES R. FULBRUGE III CLERK

TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

May 21, 2007
Ms Karen S Mitchell, Clerk Northern District of Texas, Dallas United States District Court Room 1452 1100 Commerce Street Dallas, TX 75242
No. 06-10090 EEOC v. Jefferson USDC No. 3:04-CV-1892
Enclosed, for the district court only, is a certified copy of the judgment issued as the mandate.
Enclosed, for the district court only, is a copy of the court's opinion.
The electronic copy of the record has been recycled.
Enclosed for the district court and counsel is the approved bill of costs.
Sincerely,
.. CHARLES R. FULBRUGE III, Clerk
By: &whv~ Dawn Snulin, Deputy Clerk 504-310-7658
cc: (letter only) Honorable David C Godbey Mr Ron Chapman Jr Mr Robert Elwood Sheeder Ms Jennifer Susan Goldstein
p. S. to Judge Godbey: A copy of the opinion was sent to your office via email the day it was filed.
MDT-1