F I L E D

United States Court of Appeals

Tenth Circuit

MAY 6 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANA GONZALES,

Plaintiff-Appellant,

v.

PABLO HERNANDEZ, M.D.,

THOMAS STURM, Ph.D.,

ROBERT PULLINGS and 

JOHN/JANE DOES, I-V,

individually and in their official

capacities,

Defendants-Appellees.

No. 97-2380

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-95-657-M)

James A. Burke, Santa Fe, New Mexico, for Plaintiff-Appellant.

Walter G. Lombardi, RMD Legal Bureau, State of New Mexico, for DefendantsAppellees.

Before SEYMOUR, Chief Judge, ANDERSON and BRISCOE, Circuit Judges.

SEYMOUR, Chief Judge.
1

 In the original complaint, Ms. Gonzales included John Does 1-10 as

defendants. After proposing and then withdrawing an amended complaint in

February 1995, Ms. Gonzales ultimately proposed and filed another amended

complaint that dropped defendants Does 1-10, Aplt. App. 79-82, leaving LVMC

as sole defendant.

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Ana Gonzales brought this civil rights action claiming that defendants

discriminated and retaliated against her in connection with her employment by the

Las Vegas Medical Center (LVMC). The district court granted summary

judgment against Ms. Gonzales under the Eleventh Amendment and the doctrines

of res judicata and collateral estoppel. We affirm in part and reverse in part.

I

Ms. Gonzales brought an unsuccessful discrimination claim against LVMC

before the New Mexico Human Rights Commission. Pursuant to the New Mexico

Human Rights Act, N.M. STAT. ANN. §§ 28-1-10 et seq., she appealed de novo in

state court, filing suit in October 1994 against LVMC but not against any

individual employees.1 She alleged that LVMC, through its employees,

discriminated against her on the basis of national origin in violation of the state

act. She further alleged that LVMC retaliated against her for filing her Human

Rights Commission claim.

In June 1995, Ms. Gonzales filed the present action in federal court under

42 U.S.C. §§ 1981 and 1983. Describing the same acts and occurrences as alleged
2

 Ms. Gonzales does not dispute on appeal that the Eleventh Amendment

bars her claim against defendants in their official capacities. See Ford v. New

Mexico Dept. of Pub. Safety, 891 P.2d 546, 551 (N.M. Ct. App. 1994).

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in the state court suit, she asserted that defendant LVMC employees, in their

individual and official capacities, discriminated and retaliated against her,

violating her federal equal protection, substantive due process, and First

Amendment rights. The federal district court stayed this action pending the

outcome of the state court suit. A jury in state court subsequently returned a

verdict finding that LVMC did not discriminate but did retaliate against Ms.

Gonzales. The jury awarded her $170,000 in compensatory damages, as well as

attorney’s fees and costs. 

The defendant LVMC employees in the instant action then moved for

summary judgment. The district court granted it, holding the federal claims barred

under the Eleventh Amendment and by res judicata and collateral estoppel. Ms.

Gonzales appeals that summary judgment on the issues of preclusion.2

II

We review a summary judgment decision de novo, applying the same legal

standards used by the district court under Fed.R.Civ.P. 56(c). See Pino v. Higgs,

75 F.3d 1461,1463 (10th Cir. 1996). We review the record in the light most

favorable to the non-moving party. See McIlravy v. Kerr McGee Corp., 119 F.3d
3

 We note that although Willner held that res judicata principles did not

apply in that case, see 848 F.2d at 1034 n.2, it also held that collateral estoppel

precluded the plaintiff’s claims, id. at 1034.

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876, 879 (10th Cir. 1997).

A federal court is required to give a state court judgment the same

preclusive effect it would be given under the laws of the state in which it was

rendered. See 28 U.S.C. § 1738; Migra v. Board of Educ., 465 U.S. 75 (1984). In

the instant case, the governing law is that of New Mexico. We will address in turn

the preclusive effect of Ms. Gonzales’ state discrimination and retaliation claims

on her subsequent federal claims.

A. Discrimination

Ms. Gonzales contends the district court erred in holding that her

unsuccessful discrimination claim against LVMC in state court is binding on her

with respect to the individual defendants in her federal claim. She relies on

Willner v. Budig, 848 F.2d 1032 (10th Cir. 1988), for the proposition that there is

no preclusion in identical but separate actions when the defendant in one action is

a vicariously liable entity, as here, and the defendant in the other action is a

primary obligor, so long as there is no privity between the defendants.3 Willner

was not applying New Mexico law, however, as we are required to do here. See

id. In the instant case, New Mexico law adopting the Restatment (Second) of
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Judgments § 51 (1980) controls questions of preclusion involving vicarious

liablility. See Ford v. New Mexico Dept. of Pub. Safety, 891 P.2d 546, 550 (N.M.

Ct. App. 1994). 

Section 51 of the Restatement reads in relevant part:

If two persons have a relationship such that one of them is vicariously

responsible for the conduct of the other, and an action is brought by the

injured person against one of them, the judgment in the action has the

following preclusive effects against the injured person in a subsequent

action against the other.

(1) A judgment against the injured person that bars him from reasserting his

claim against the defendant in the first action extinguishes any claim he has

against the other person responsible for the conduct unless:

(a) The claim asserted in the second action is based upon grounds that

could not have been asserted against the defendant in the first action;

or

(b) The judgment in the first action was based on a defense that was

personal to the defendant in the first action.

RESTATEMENT (SECOND) OF JUDGMENTS, § 51 (1980) (emphasis added).

The Restatement thus recognizes that when an injured party initiates

separate actions against a vicariously liable party and the primary obligor, and the

injured party is unsuccessful in one claim, she is thereafter precluded from

litigating a second claim based on the same conduct. The comments to the

Restatement note that, “[i]n an important sense, . . . there is only a single claim. 

The same loss is involved, usually the same measure of damages, and the same or

nearly identical issues of fact and law.” Id. at § 51 cmt. b. As such, “if [the
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injured party] is allowed to sue the second obligor after having lost an action

against the first,” rules of preclusion should “approximate those that govern when

the same claim is successively asserted against a single defendant.” Id. 

The New Mexico Court of Appeals applied section 51(1) in Ford, 891 P.2d

at 550. The court enumerated four elements that need to be fulfilled to trigger

preclusion under the section: (1) liability under one of the claims is based on

vicarious responsibility for the defendants in the other claim; (2) the first judgment

would preclude a subsequent claim by plaintiff against the first defendants for the

conduct alleged in the second claim; (3) the claims in the second action are claims

that could have been asserted against the first defendants in the first action; and

(4) the first judgment was not based on a defense personal to the first defendants. 

Id. In the employment suit in Ford, the plaintiff sued individually-named

defendants for retaliation and denial of due process in federal court. After losing

in federal court, the plaintiff sued the employer for vicarious liability on the same

conduct in state court under state law. The court found all four elements satisfied

and barred the subsequent state suit.

Following the analysis in Ford, we apply the four requirements to determine

if Ms. Gonzales’ second discrimination claim is precluded under section 51(1). 

The first requirement is indisputably satisfied. The state claim against LVMC was

based on vicarious responsibility for the actions of LVMC’s employees,
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defendants in this action. 

The second element requires that we analyze the claims in the two suits as

though there were a single defendant. The question is whether New Mexico law

would bar Ms. Gonzales’ second suit were LVMC the defendant in both actions. 

We look to New Mexico preclusion law, which says a final judgment against a

plaintiff extinguishes all rights to remedies against the defendant with respect to

all or any part of the transaction, or series of connected transactions, out of which

the action arose. See Ford, 891 P.2d at 554. Here, the underlying transactions and

alleged wrongful conduct in Ms. Gonzales’ two claims are identical. The jury in

the state action found LVMC did not discriminate against Ms. Gonzales. Were

LVMC the defendant in the instant action, therefore, New Mexico would bar this

subsequent action as relitigating a claim previously resolved against Ms. Gonzales.

The third element requires that the claims in the second action be claims that

could have been asserted against the first defendant in the first action. Ms.

Gonzales’ 42 U.S.C. §§ 1981 and 1983 claims asserting discrimination and

retaliation could have been brought against LVMC in state court. See Martinez v.

California, 444 U.S. 277, 283 n.7 (1980); Daddow v. Carlsbad Mun. Sch. Dist.,

898 P.2d 1235 (N.M. 1995) (section 1983 action); Carter v. City of Las Cruces,

N.M., 915 P.2d 336, 338 (N.M. Ct. App. 1996) (“It is settled that state and federal

courts share concurrent jurisdiction over § 1983 claims for the denial of federal
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constitutional rights.”) 

The fourth element requires that the judgment in the first action not be

based on a defense that was personal to the defendant in the first action. Nothing

in the record indicates that LVMC’s defense was personal to itself in the first

action. All four elements are thus satisfied. 

Accordingly, pursuant to section 51(1) as applied in New Mexico,

the district court correctly held that Ms. Gonazales is precluded from litigating

claims against the defendant LVMC employees in this action on conduct identical

to that alleged in her unsuccessful discrimination suit against LVMC.

B. Retaliation

Ms. Gonzales argues the district court erred in finding that her successful

retaliation claim against LVMC in state court barred her claim against the

responsible employees in federal court. The district court apparently reached this

conclusion based on its holding that the individual employees were in privity with

LVMC and that all claims against the individual defendants should have been

brought by Ms. Gonzales in the state court suit. See Aplt. App. at 102-04. 

On appeal, defendants assert they are in privity with LVMC, their employer,

but they fail to cite a single New Mexico case so holding and we have found none. 

The general weight of authority appears to be that while government employees
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are in privity with their employer in their official capacities, they are not in privity

in their individual capacities. See, e.g., Gray v. Lacke, 885 F.2d 399, 404-06 (7th

Cir. 1989); Willner, 848 F.2d at 1034 n. 2; Headley v. Bacon, 828 F.2d 1272,

1279 (8th Cir. 1987); Roy v. City of Augusta, 712 F.2d 1517, 1522 (1st Cir.

1983); Bills v. Hommer Consol. Sch. Dist., 959 F. Supp. 507, 514-15 (N.D. Ill.

1997); CHARLES ALAN WRIGHT ET AL., 18 FEDERAL PRACTICE & PROCEDURE §

4458 at 506 & n.8, 508-09 & n.12 (1981 & Supp. 1999) (citing cases); J. MOORE,

18 MOORE’S FEDERAL PRACTICE § 131.40(3)(e)(ii)(A) (3d ed. 1999). In a

similarly postured case, the court relied on this principle in holding that res

judicata did not apply to plaintiffs who sued a school principal in his individual

capacity after having successfully sued the school district. Bills, 959 F. Supp. at

514-15. 

In any event, the New Mexico Supreme Court has made it plain that it finds

guidance in the RESTATEMENT (SECOND) OF JUDGMENTS when deciding preclusion

issues, see, e.g., Kepler v. Slade, 896 P.2d 482, 486 (N.M. 1995); Three Rivers

Land Co. v. Maddoux, 652 P.2d 240, 245 (N.M. 1982), and the Restatement does

not refer to “privity” in resolving preclusion questions. Having applied Section

51(1) of the Restatement in Ford, we see no reason why the New Mexico courts

would not apply section 51(2) as well. Indeed, the Ford court recognized

“Section 51 as accurately describing New Mexico law.” 891 P.2d at 550. We
4

 Defendants assert that Ms. Gonzales’ reliance on § 49 of the Restatement

is flawed because that section assumes the persons allegedly jointly responsible

for the loss are not in privity. Aplee. Br. at 11. As we have indicated above, the

Restatement does not refer to privity and, in any event, we have found no New

Mexico case holding that individual employees are in privity with their

vicariously liable employers. Moreover, defendants cite no New Mexico case

(continued...)

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therefore turn to section 51(2).

Section 51(2) provides:

(2) A judgment in favor of the injured person is conclusive

upon him as to the amount of his damages, unless . . .

(b) Different rules govern the measure of damages in 

the two actions.

RESTATEMENT (SECOND) OF JUDGMENTS, § 51(2) (1980) (emphasis added). Courts

applying section 51(2) have held that a judgment in favor of the injured party in a

vicarious liability relationship does not preclude a second action against

nonparties except as to the amount of damages. See Kimmel v. Iowa Realty Co.,

339 N.W.2d 374, 378 (Iowa 1983); see also Headley v. Bacon, 828 F.2d at 1278;

Day v. Davidson, 951 P.2d 378, 383 (Wyo. 1997). 

The Restatement clearly contemplates a complainant proceeding in split

actions against a vicariously responsible obligor and the primary obligor. See

RESTATEMENT (SECOND) OF JUDGMENTS § 49 (“A judgment against one person

liable for a loss does not terminate a claim that the injured party may have against

another person who may be liable therefore.”);4see also id. § 50 (foreclosing
4

(...continued)

supporting the proposition that a plaintiff is improperly splitting a cause of action

when she sues jointly and severally liable defendants in separate actions. An

illustration set out under Restatement § 49 is on point:

A is injured as a result of the wrongful act of S, who is M’s

employee. In A’s action against M, both the issues of liability and

the extent of A’s injuries are litigated. Judgment is for A for

$10,000. A is not precluded from bringing an action against S but

may recover no more than $10,000 for the injuries involved.

RESTATEMENT (SECOND) OF JUDGMENTS § 49 illus. 1; see also id. § 24 cmt. e

(“The rule against splitting . . . takes as its model a claim and action by a single

plaintiff against a single defendant”); Anaya v. City of Albuquerque, 924 P.2d

735, 740 (N.M. App. 1996) (quoting § 24, cmt. e).

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double recovery); cf. Sanchez v. Clayton, 877 P.2d at 572 (noting that Section 50

sets forth a “sound principle” as applied to awards of compensatory damages).

Section 51(2)(b) allows additional damages in the subsequent action as long as the

first action is successful and the measure of damages in the second action is

different. In fact, the Restatement constructs a hypothetical directly on point:

P is injured as a result of the deliberate act of S, who is M’s

employee. P brings an action against M, the applicable law limiting

his recovery to compensatory damages. P obtains judgment for

$10,000. In a subsequent action against S, P may obtain judgment

for no more than $10,000 in compensatory damages but is not

precluded from recovering punitive damages.

Id. at § 51 illus. 7. 

In Ms. Gonzales’ retaliation claim in state court, she won $170,000 in

compensatory damages against LVMC, the vicariously responsible party. 
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Applying the principles of the Restatement, we hold that Ms. Gonzales is not

barred from suing the employee defendants for retaliation, but she is precluded

under section 51(2) from seeking more than $170,000 in compensatory damages. 

Punitive damages are a different matter, however. The New Mexico Human

Rights Act limited Ms. Gonzales’ recovery against LVMC to actual damages

which are “‘synonymous with compensatory damages, and excludes punitive

damages.’” Behrmann v. Phototron Corp., 795 F.2d 1015, 1020 (N.M. 1990)

(quoting 22 AM. JUR. 2D DAMAGES § 3 (1988)). Because “[d]ifferent rules

govern[ed] the measure of damages” in the first action, see RESTATEMENT

(SECOND) JUDGMENTS § 51(2)(b), Ms. Gonzales is not barred from seeking

punitive damages in her retaliation claim against the employee defendants in this

action. See Sanchez, 877 P.2d at 572 (punitive damages punish the tortfeasor for

wrongdoing rather than compensate the victim for a loss and must be separately

determined against each defendant). 

In sum, although New Mexico law clearly precludes Ms. Gonzales’

discrimination claim against the employee defendants in this action, there is no

policy reason nor law in New Mexico to bar her retaliation claim against the

defendants for their individual liability since she prevailed on this claim in the

first action against LVMC and also since different rules govern the measure of

damages in this subsequent federal action. Consequently, we AFFIRM the
5

 We do not consider other issues raised by defendants that were not

addressed by the district court. Those issues may be reasserted on remand.

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district court’s grant of summary judgment in favor of defendants on Ms.

Gonzales’ federal claim of discrimination. We REVERSE the summary judgment

on Ms. Gonzales’ federal claim of retaliation and REMAND for further

proceedings.5