IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10478

Summary Calendar

DIANE MCINTYRE, 

 Plaintiff - Appellant

v.

BEN E. KEITH COMPANY, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:18-CV-203

Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Diane McIntyre appeals the district court’s judgment dismissing her Fair 

Labor Standards Act claims as barred by res judicata. Because McIntyre’s 

claims arise from the same common nucleus of operative facts as her previously 

dismissed action brought under Title VII of the Civil Rights Act, we affirm.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 30, 2018

Lyle W. Cayce

Clerk

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I.

In December 2016, Ms. McIntyre initiated her first lawsuit against Ben 

E. Keith Company when she sued the company in federal district court for 

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 

Complaint, McIntyre v. Ben E. Keith Co., No. 4:16-CV-1134-A, 2017 WL 

4653447 (N.D. Tex. Oct. 13, 2017). In her complaint, she alleged that she began 

working as a backhaul driver for Ben E. Keith Company, a food and beverage 

distribution company, in June 2014. Id. ¶ 3.01. She further alleged that she 

was the sole African-American female driver in her division and that she was 

the only driver consistently assigned to work more than fifty-five hours a week. 

Id. ¶ 3.02. When she complained about her excess hours, she was subjected 

to increased levels of harassment and discriminatory conduct. Id. ¶ 3.03. In 

January 2016, her supervisor began deducting wage compensation from her 

paychecks, which he justified as disciplinary measures for missing a meeting 

and taking leave. Id. ¶ 3.04. She attempted to report this retaliation to 

company higher ups, and requested documentation of her supervisor’s ability 

to deduct her pay. Id. ¶¶ 3.04–3.07. The response, however, was an email 

stating that her demands were becoming “unreasonable” and “insubordinate.” 

Id. ¶ 3.08. Four days later, on March 14, 2016, she was discharged. Id. ¶ 3.09. 

In that action, Ms. McIntyre asserted causes of action for discrimination based 

on gender and race, hostile work environment, harassment, and retaliation, 

particularly in the form of improper wage deductions from her paycheck and, 

ultimately, her firing. Id. at ¶¶ 4.01–6.04. The district court entered summary 

judgment in favor of Ben E. Keith Company and dismissed Ms. McIntyre’s 

complaint with prejudice. McIntyre, 2017 WL 4653447 at *4. We dismissed 

Ms. McIntyre’s appeal of this judgment for want of prosecution. McIntyre v. 

Ben E. Keith Co., No. 17-11344, 2018 WL 2215968 (5th Cir. Jan. 17, 2018). 

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Ms. McIntyre was, however, undeterred by this dismissal and filed the 

present action alleging violations of the Fair Labor Standards Act (FLSA). Fair 

Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. In her new 

complaint, she again alleges that she worked as a back haul driver for Ben E. 

Keith Company and routinely worked more than forty hours a week. She 

alleges for the first time, however, that Ben E. Keith Company refused to pay 

her overtime or compensate her at all for these excess hours. The complaint 

then goes on to allege, as in the prior action, that when she complained about 

her hours as compared to her coworkers, she had her pay docked and was 

ultimately fired for insubordination. The district court, sua sponte, dismissed 

Ms. McIntyre’s claims on res judicata grounds pursuant to Federal Rule of Civil 

Procedure 12(b)(6).

II.

Ms. McIntyre contends on appeal that the district court erred in finding 

that her Civil Rights Act and FLSA claims arose out of the same set of 

operative facts. She further argues that the district court erred by not 

conducting an analysis of the operative facts prior to making its sua sponte

ruling.1 We review de novo a dismissal based on res judicata. Mowbray v. 

Cameron Cty., 274 F.3d 269, 281 (5th Cir. 2001) (citing RecoverEdge L.P. v. 

Pentecost, 44 F.3d 1284, 1290 (5th Cir. 1995)). 

Generally, res judicata must be pled as an affirmative defense. See Fed. 

R. Civ. P. 8(c)(1). Two limited exceptions to this rule exist. The first exception 

permits “[d]ismissal by the court sua sponte on res judicata grounds . . . in the 

interest of judicial economy where both actions were brought before the same 

court.” Mowbray, 274 F.3d at 281 (alterations in original) (quoting Boone v. 

Kurtz, 617 F.2d 435, 436 (5th Cir. 1980)). The second exception applies “where 

 

1 Ben E. Keith Company has not filed a response brief.

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all of the relevant facts are contained in the record . . . and all are 

uncontroverted.” Id. (quoting Am. Furnitive Co. v. Int’l Accommodations 

Supply, 721 F.2d 478, 482 (5th Cir. 1981)). Both McIntyre’s Civil Rights Act 

and FLSA actions were brought before the same federal district court. The 

relevant facts are contained in McIntyre’s complaint, which is nearly identical 

to the complaint filed in the earlier action. Thus, the district court did not err 

in raising the issue of res judicata sua sponte under Rule 12(b)(6). 

We now turn to the merits of the district court’s res judicata ruling. Res 

judicata “bars the litigation of claims that either have been litigated or should 

have been raised in an earlier suit.” Test Masters Educ. Servs., Inc. v. Singh, 

428 F.3d 559, 571 (5th Cir. 2005) (citing Petro–Hunt, L.L.C. v. United States, 

365 F.3d 385, 395 (5th Cir. 2004)). Res judicata applies when “(1) the parties 

are identical or in privity; (2) the judgment in the prior action was rendered by 

a court of competent jurisdiction; (3) the prior action was concluded by a final 

judgment on the merits; and (4) the same claim or cause of action was involved 

in both actions.” Id. Ms. McIntyre concedes that the parties in her Civil Rights 

Act and FLSA actions are identical, the judgment in the prior action was 

rendered by a court of competent jurisdiction, and the prior action was 

concluded by a final judgment on the merits. She disputes the district court’s 

conclusion only as to the fourth element.

To determine whether two actions involve the same claim or cause of 

action, we apply a transactional test. Id. Under that test, “a prior judgment’s 

preclusive effect extends to all rights of the plaintiff with respect to all or any 

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

original action arose.” Id. Determining whether a grouping of facts constitutes 

a “transaction” or “series of transactions” must be done “pragmatically, giving 

weight to such considerations as whether the facts are related in time, space, 

origin, or motivation, whether they form a convenient trial unit, and whether 

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their treatment as a unit conforms to the parties’ expectations or business 

understanding or usage.” Id. Thus, “[t]he critical issue is whether the two 

actions are based on the ‘same nucleus of operative facts.’” Id. (quoting New 

York Life Insur. Co. v. Gillispie, 203 F.3d 384, 387 (5th Cir. 2000)). 

The claims in both of Ms. McIntyre’s actions related to her employment

as a back haul driver for Ben E. Keith Company and her allegations that she 

worked overtime and, after she complained that her hours exceeded those of 

other employees, the company retaliated against her by docking her pay and 

ultimately discharging her. Ms. McIntyre’s complaint in this action omits her 

prior allegations related to gender and racial discrimination, but yet contains

only a single new allegation—that she was not properly compensated for her 

overtime work. All the claims in both actions, however, originate from the

virtually identical course of allegedly unlawful conduct by Ben E. Keith 

Company as applied to Ms. McIntyre’s overtime work and could, and should 

have been, brought in the earlier lawsuit. See Davis v. Dallas Area Rapid 

Transit, 383 F.3d 309, 314 (5th Cir. 2004) (holding that claims arose from the 

same series of transactions even though the “factual allegations articulated in 

the two complaints differ” because “all of the claims in question originate from 

the same continuing course of allegedly discriminatory conduct”). Thus, we 

hold that, because Ms. McIntyre’s Civil Rights Act and FLSA actions arose 

from the same nucleus of operative facts, both actions involved the same claim

and the latter, that is the claim presented in this appeal, is barred by res 

judicata.

III.

Accordingly, the judgment of the district court dismissing Ms. McIntyre’s

complaint is 

AFFIRMED.

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