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EEO: DOES AN EMPLOYEE GET A SECOND CHANCE WHEN HIS EEO LAWSUIT IS DISMISSED AS UNTIMELY?
A recent decision by the Court of Appeals for the Third Circuit addresses the question of whether a plaintiff whose Title VII lawsuit was dismissed as untimely can sue again under a different statute and allegedly different facts. The court dismissed the second suit as well. Elkadrawy v. The Vanguard Group, Inc., 584 F.2d 169 (3rd Cir. 2009).
The plaintiff, Emad Elkadrawy, a Muslim of Egyptian origin, sued the Vanguard Group claiming that he was terminated because of his race, religion, age and national origin. The case was dismissed as untimely because Elkadrawy did not file his suit within 90 days of receipt of the EEOC right to sue letter. Elkadrawy then filed a second suit under another federal discrimination statute (42 USC Sec 1981). The Vanguard Group moved to dismiss, relying on the doctrine of res judicata. Despite its esoteric name, this doctrine prevents a plaintiff whose lawsuit has been dismissed "on the merits" from having a second chance to litigate the same or a similar claim. The purpose of the rule is to prevent unsuccessful plaintiffs from having a second chance to litigate their claim.
Elkadrawy argued that the res judicata rule did not apply because his first lawsuit had been dismissed on "technical" statute of limitations grounds, not on the merits, and that the second suit was filed under a different statute and was based on an expanded and different version of the underlying facts. The court rejected these arguments, holding, first, that a dismissal on statute of limitations grounds was a dismissal on the merits. As to the claim that the second lawsuit was based on different facts and was filed under a different statute, the court held that the analysis of these arguments does not depend on the specific legal theory asserted in the second case but on whether the two lawsuits were grounded in essentially similar facts and underlying events. Alternatively, the court noted that the doctrine of res judicata prevented plaintiffs from asserting in a second suit claims that "could have been" brought in the first suit.
This decision is a common sense application in the discrimination context of the res judicata rule, which is intended to provide finality to successful defendants and preclude a second round of litigation over the same or similar claims.
