Alan Rodemaker v. City of Valdosta Board of Education

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13300

____________________

ALAN RODEMAKER,

Plaintiff-Appellant,

versus

CITY OF VALDOSTA BOARD OF EDUCATION,

or, in the Alternative, VALDOSTA CITY SCHOOL DISTRICT,

WARREN LEE,

individually as Agent of the City of Valdosta Board of Education

and/or the Valdosta City School District,

LIZ SHUMPHARD,

individually as Agent of the City of Valdosta Board of Education

and/or the Valdosta City School District,

TYRA HOWARD,

individually as Agent of the City of Valdosta Board of Education

and/or the Valdosta City School District,

DEBRA BELL,

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2 Opinion of the Court 22-13300

individually as Agent of the City of Valdosta Board of Education

and/or the Valdosta City School District,

KELISA BROWN,

individually as Agent of the City of Valdosta Board of Education

and/or the Valdosta City School District,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 7:21-cv-00076-HL

____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

Coach Alan Rodemaker’s contract as the head football coach

at Valdosta High School was not renewed by the Valdosta Board

of Education in 2020. That result followed from a vote in which all

four of the white members of the Board voted to renew, but all five

of the black members voted not to renew. Rodemaker believes

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22-13300 Opinion of the Court 3

that all of the black members of the Board voted not to renew his

contract because he is white. 1

In 2020 Rodemaker sued the five black members of the

Board of Education in their individual capacities in federal court

under 42 U.S.C. §§ 1981, 1983 (Rodemaker I). He sought monetary

damages from them. His lawsuit did not name as parties the Board

itself or any of the white members of the Board. The district court

denied the individual Board members’ motions to dismiss on qual-

ified immunity grounds, but we reversed that denial after conclud-

ing that Rodemaker had failed to state a claim against them. The

result was judgment for the defendant board members in Rode-

maker I.

Then came Rodemaker II in 2021. The complaint in it named

the same black board members as before, but this time it also in-

cluded the Board itself as a defendant. And it did not claim that the

alleged racial discrimination was a violation of § 1981 but of Title

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

complaint in Rodemaker II includes more detailed factual allegations

than the one in Rodemaker I, and is based on a different anti-discrim-

ination statute, but the crux of both complaints is the same. Both

1 The complaint in Rodemaker II uses the racial identifiers “black” and

“African American” interchangeably. It also uses the term “white,” except for

three occasions on which “Caucasian” is used. For internal consistency, we

will use the terms “black” and “white” when referring to race. And we will

follow the predominate practice in the complaints of not capitalizing either

the “b” or the “w,” except at the beginning of sentences.

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4 Opinion of the Court 22-13300

complaints claim that the Board and its black members discrimi-

nated against Rodemaker based on his race when his contract was

not renewed. He sought monetary damages in both lawsuits.

In the present lawsuit, Rodemaker II, the Board moved for

summary judgment, contending that because of the judgment in

Rodemaker I res judicata barred the claim against the defendants in

this lawsuit. The district court granted the motion after determin-

ing that the Board was in privity with the board member defend-

ants because they had been acting as its agents when they decided

not to renew Rodemaker’s contract and that, despite the different

legal labels for the claims, Rodemaker I and II involve the same cause

of action. We agree.

I . BACKGROUND2

A. RODEMAKER I

1. Allegations in Rodemaker I

Rodemaker filed his first lawsuit, Rodemaker I, in federal

court in April 2020. It named as defendants the five black members

of the Valdosta Board of Education — Warren Lee, Liz

Shumphard, Tyra Howard, Debra Bell, and Kelisa Brown — in

2 In its motion for summary judgment based on res judicata, the Board

relied on the historical facts alleged in the Rodemaker I and Rodemaker II com-

plaints, and in this appeal Rodemaker has not raised any issue with that reli-

ance or with any of those historical facts. We will go along with their approach

in recounting the facts, even though this is an appeal from the grant of sum-

mary judgment and not from the grant of a motion to dismiss.

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their individual capacities. It claimed racial discrimination in viola-

tion of 42 U.S.C. §§ 1981 and 1983 against all five defendants, seek-

ing monetary damages and attorney’s fees.

The Rodemaker I complaint alleged that Rodemaker had

been the head football coach at Valdosta High School in Georgia,

where he once won the State 6A Championship and twice made it

to the State 6A quarterfinals. He had also been a gym teacher at

Valdosta and had “accepted a school contract with the Valdosta

Board of Education on an annual basis for each of the last ten

years.” As both a football coach and teacher, his “reviews and rep-

utation [were] exemplary.”

In January 2020, the contracts of 151 teachers and coaches

were up for annual renewal by the Valdosta Board of Education.

According to the complaint, the racial makeup of the Board “had

recently changed” from five white members and four black mem-

bers to four white members and five black members.

When it came time to renew the teachers’ and coaches’ con-

tracts, board member Lee moved to consider Rodemaker’s con-

tract separately from the 150 other contracts up for renewal. All

150 other contracts were renewed. But by a 5-4 margin along racial

lines, the Board voted not to renew Rodemaker’s contract. None

of the board members who voted against renewing Rodemaker’s

contract provided any reason for their decision.

The Board held a second vote on Rodemaker’s contract in

February 2020, but the Board again voted along racial lines not to

renew the contract. At the meeting, white board member Kelly

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Wilson stated that “the actions of the School Board with regard to

Coach Rodemaker were not only improper, but probably illegal.”

Rodemaker contended that his contract was not renewed because

the black board members wanted to hire a black football coach. He

claimed that “the conspiracy to non-renew Coach Rodemaker oc-

curred in illegal meetings” with the black board members.

2. Procedural History of Rodemaker I

All five defendants filed motions to dismiss, contending that

they were entitled to qualified immunity. The district court denied

the motions to dismiss, and the defendants filed an interlocutory

appeal of the order. In June 2021 we reversed the denial of the de-

fendants’ motions to dismiss, holding that the complaint failed to

state a claim. See Rodemaker v. Shumphard, 859 F. App’x 450, 453

(11th Cir. 2021). We remanded the case to district court for dismis-

sal. See id.

B. RODEMAKER II

While Rodemaker I was pending before the district court,

Rodemaker filed two charges of discrimination with the United

States Equal Employment Opportunity Commission (EEOC), one

against the Valdosta Board of Education and one against the Val-

dosta City School District. And while the Rodemaker I defendants’

interlocutory appeal was pending, the EEOC issued a right to sue

letter for both charges. See generally Forehand v. Fla. State Hosp. at

Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996) (describing the

EEOC’s right to sue process).

1. Allegations in Rodemaker II

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Ten days after we remanded Rodemaker I to the district

court, Rodemaker filed the complaint that forms the basis of this

lawsuit, Rodemaker II. It named as defendants the City of Valdosta

Board of Education, as well as the five black board members. 3 It

contained a race discrimination claim under Title VII against the

Board, a race discrimination claim under Title VII against the board

members, and a conspiracy claim against the board members. It

sought compensatory and punitive damages as well as attorney’s

fees under 42 U.S.C. § 2000e-5(k) and O.C.G.A. § 13-6-11. The

claim against the board members under Title VII alleged that they

“acted as agents” of the Board when they voted not to renew his

contract.

The factual allegations in the Rodemaker II complaint are ma-

terially identical to those in Rodemaker I, albeit slightly more de-

tailed. What follows is a recounting of those allegations.

Rodemaker was the head football coach at Valdosta High

School, where he once won the State 6A Championship and twice

made it to the State 6A quarterfinals. He was also a gym teacher at

Valdosta and in both positions was an employee of the Board. As

both a football coach and teacher, his “reviews and reputation were

3 The complaint does not clearly state in what capacity the five board

members were being sued. Rodemaker contends that he sued them in their

official capacity. But because he appeals only the grant of summary judgment

against the Board, and not the dismissal of the claims against the individual

board members, the capacity in which he sued the board members in Rode-

maker II is not relevant.

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exemplary,” and there were no complaints or any evidence of mis-

conduct in his personnel file.

The Board was required to consider for renewal on a yearly

basis Rodemaker’s employment. It had renewed his contract every

year from 2010 through 2019. But before the vote on renewal of

Rodemaker’s contract for the 2020–2021 school year, the racial

makeup of the Board had changed from a majority-white board to

a majority-black board, on which five of the nine board members

were black. The five black board members were Warren Lee, Liz

Shumphard, Tyra Howard, Debra Bell, and Kelisa Brown. They

“participated in public meetings where they discussed their intent”

to vote to non-renew Rodemaker’s contract in order to replace him

with a black head coach. The black board members also texted and

emailed among themselves “regarding their concerted plan to vote

to non-renew Coach Rodemaker as the Head Football Coach.”

And black board member Lee had made comments in the past that

“Valdosta High School needed a head football coach of color” and

had insisted that job applications submitted to the Board should in-

dicate whether the applicant was black or white.

For the 2020 school year, the Valdosta City Schools Super-

intendent had recommended that the Board renew Rodemaker’s

contract for another year. Generally, once the Superintendent rec-

ommended renewal of a contract, the Board would “vote on all of

the Superintendent[’]s recommendations for rehire in one vote.”

But at the January 2020 board meeting, “Lee requested that

the recommendation to renew Coach Rodemaker[’]s football

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22-13300 Opinion of the Court 9

coaching contract be considered separately” from all other recom-

mendations. The Board then separated the personnel list into two

groups, an A list and a B list. All other school system personnel

were on the A list, and Rodemaker was the only employee on the

B list.

The Board members discussed the renewal matters in pri-

vate during an executive session. The Board then returned to a

public session to vote. A white board member moved to renew

Rodemaker’s employment contract, but that motion was defeated

by a 4-5 vote along racial lines. The five black board members who

voted to non-renew Rodemaker’s contract did not explain why

they did so.

In response to public outcry, the Board planned to recon-

sider the non-renewal of Rodemaker’s contract at a February 2020

meeting. At the meeting, Lee moved to strike reconsideration of

Rodemaker’s contract from the agenda, but the motion was de-

feated by a vote of 4-5, with Lee, Shumphard, Howard, and Brown

voting to remove consideration of the matter from the agenda,

while Bell voted with the four white board members to leave it on

the agenda. The Board then heard comments from the public

about whether it should renew Rodemaker’s contract. Five black

members of the community spoke against renewing Rodemaker’s

contract. They made comments: “urg[ing] the black members of

the School Board to ‘stand together’”; reminding those members

they were “‘put there’ by black votes”; and “impl[ying] that black

football players had been used by the white establishment . . .

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without regard to the well-being of the black players.” Seven peo-

ple, some of them black and some of them white, spoke in support

of renewing Rodemaker’s contract.

After hearing the public comments, the Board again dis-

cussed the vote in private. Once the board members returned to

the public forum to vote, a white board member again moved to

renew Rodemaker’s contract. And again the motion was denied,

with the board members voting entirely along racial lines. The

board members who voted against renewing Rodemaker’s con-

tract did not give a reason for their decision. One of the white

board members later “confirmed that race was a factor” in the vote.

The black board members sought to replace Rodemaker

with a black coach. But after they were unable to find a black can-

didate, the Board voted along racial lines to hire “controversial

football coach Rush Pro[p]st.” After Propst was removed as coach

in April 2021 for illegally recruiting players, the Board hired a black

man as interim head coach.

2. Procedural History of Rodemaker II

The board members moved to dismiss Rodemaker’s com-

plaint on the merits. A couple months later, the Board filed a mo-

tion for summary judgment, arguing that Rodemaker’s claims

against it are barred by res judicata. Specifically, the Board argued

that it was in privity with the board members sued in Rodemaker I

because they were its agents and the causes of action in the two

cases are the same. It also argued (for the first time in its reply brief)

that it was in privity with the board members because “[t]he School

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Board controlled the litigation [in Rodemaker I]. Counsel for the

Board had defended all five Individual Defendant Board Members

and necessarily consulted with the School Board throughout the

course of the prior litigation,” i.e., during Rodemaker I.

The district court granted the board members’ motions to

dismiss and entered judgment for them, a judgment which is not

contested in this appeal. It also granted the Board’s motion for

summary judgment, which is contested in this appeal.

The district court granted summary judgment for the Board

on res judicata grounds after determining that it was in privity with

the board members because their votes not to renew Rodemaker’s

contract were cast as agents of the Board. Privity existed, the court

reasoned, because the board members acted as agents of the Board

in Rodemaker I, the Board and the board members shared a “com-

monality of interests for purposes of defending against [Rode-

maker’s] claim,” and because Rodemaker did “not dispute [the

Board’s] assertion that the School Board provided counsel for the

[board members] in the previous action and exerted substantial

control over the defense.” The court also determined that Rode-

maker I and II shared the same cause of action because the claims in

both arose out of the same nucleus of operative facts.

This is Rodemaker’s appeal of the district court’s entry of

judgment in favor of the Board in Rodemaker II based on res judi-

cata.

II. THE ELEMENTS OF RES JUDICATA AND THE

APPLICABLE STANDARD OF REVIEW FOR IT

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Res judicata prevents plaintiffs from bringing claims related

to prior decisions when “the prior decision (1) was rendered by a

court of competent jurisdiction; (2) was final; (3) involved the same

parties or their privies; and (4) involved the same causes of action.”

TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co., 959 F.3d 1318,

1325 (11th Cir. 2020).

In their briefing, both parties contend that we should “re-

view de novo a district court’s determination of res judicata,” but

that “whether a party is in privity with another for preclusion pur-

poses is a question of fact that is reviewed for clear error.” EEOC v.

Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). As it turns

out, it’s a little more cloudy than that because there is an intra-cir-

cuit conflict in our decisions about the standards of review for priv-

ity determinations.

At least a half dozen of our decisions review questions of

privity only for clear error. See ADT LLC v. NorthStar Alarm Servs.,

LLC, 853 F.3d 1348, 1351 (11th Cir. 2017) (“Whether a party is in

privity with another party is a question of fact that we review for

clear error.”); CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333,

1340 (11th Cir. 2017) (“Privity is a factual question which should

not be reversed unless its determination is clearly erroneous.”)

(quoting Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1472

(11th Cir. 1986)) (cleaned up); Baloco v. Drummond Co., Inc., 767 F.3d

1229, 1246 (11th Cir. 2014) (“[W]hether a party is in privity with

another for preclusion purposes is a question of fact that is re-

viewed for clear error.”) (quotation marks omitted); Griswold v.

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Cnty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010)

(“[W]hether a party is in privity with another for preclusion pur-

poses is a question of fact that is reviewed for clear error.”) (quota-

tion marks omitted); Pemco Aeroplex, 383 F.3d at 1285 (“[W]hether

a party is in privity with another for preclusion purposes is a ques-

tion of fact that is reviewed for clear error.”); Hart, 787 F.2d at 1472

(“A district court’s determination as to whether interrelated corpo-

rations are in privity with each other is a factual question which

should not be reversed unless its determination is clearly errone-

ous.”); Astron Indus. Assocs., Inc. v. Chrysler Motors Corp., 405 F.2d

958, 961 (5th Cir. 1968) (“This determination of identity between

litigants for the purpose of establishing privity is a factual question,

and the District Court should not be reversed unless its determina-

tion is clearly erroneous.”). 4

But some of our other decisions apply de novo review to all

elements of res judicata, including privity. See Herman v. S.C. Nat’l

Bank, 140 F.3d 1413, 1424 n.17 (11th Cir. 1998) (“Application of res

judicata presents questions of law reviewed de novo.”); NAACP v.

Hunt, 891 F.2d 1555, 1560 (11th Cir. 1990) (“A district court’s con-

clusions as to res judicata are conclusions of law, and are thus re-

viewable de novo by this Court.”); id. at 1561 (“The question of

whether sufficient privity exists to warrant application of res judi-

cata is a question of law.”) (citing Sw. Airlines Co. v. Tex. Int’l

4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en

banc), we adopted as binding precedent all decisions of the former Fifth Circuit

handed down before October 1, 1981.

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14 Opinion of the Court 22-13300

Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977)) (explaining that “fed-

eral cases have recognized that ‘privity’ denotes a legal conclu-

sion”); McDonald v. Hillsborough Cnty. Sch. Bd., 821 F.2d 1563, 1564

(11th Cir. 1987) (“The district court’s determination regarding the

availability of res judicata as a defense is a conclusion of law. Thus,

whether or not res judicata is available is totally reviewable.”) (cita-

tion omitted); see also Consumer Fin. Prot. Bureau v. Ocwen Fin. Corp.,

30 F.4th 1079, 1083 n.1 (11th Cir. 2022) (stating, in a case where

privity was not at issue, that “[b]ecause barring a claim on the basis

of res judicata is a determination of law, our review is de novo”)

(cleaned up); Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1375 (11th

Cir. 2011) (stating that “[b]ecause res judicata determinations are

pure questions of law, we review them de novo,” but where privity

was not at issue) (quotation marks omitted); In re Piper Aircraft

Corp., 244 F.3d 1289, 1295 (11th Cir. 2001) (explaining that “[a]

court’s application of res judicata presents questions of law re-

viewed de novo,” but not reaching the privity question); Sewell v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 94 F.3d 1514, 1517 (11th

Cir. 1996) (asserting that “[t]he application of res judicata principles

to [the plaintiff’s] claims constitutes a pure question of law which

this court reviews de novo,” but where privity was not at issue).

The conflict is also reflected one place removed in opinions

discussing whether privity is a question of fact or a question of law.

Compare Sellers v. Nationwide Mut. Fire Ins. Co., 968 F.3d 1267, 1275–

76 (11th Cir. 2020) (stating in an issue preclusion case involving the

application of Alabama law that “[w]hether parties were in privity

is a factual question that should be decided in the first instance by

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the district court”) (quotation marks omitted), with Riddle v. Cerro

Wire & Cable Grp., Inc., 902 F.2d 918, 921–22 (11th Cir. 1990) (ex-

plaining that when determining if res judicata bars a subsequent

action, it’s “a question of law” whether the plaintiff has “sufficient

identity of interests . . . so that she may be treated as a party for

preclusion purposes”).

Were we deciding the issue as one of first impression, we

might well hold that privity is a mixed question of law and fact. See

Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982) (explaining

that a mixed question of law and fact is a “question[] in which the

historical facts are admitted or established, the rule of law is undis-

puted, and the issue is whether the facts satisfy the statutory stand-

ard”). And for mixed questions of law and fact, we normally review

the underlying factual determinations for clear error, while review-

ing de novo the district court’s application of facts to law. See In re

Am.-CV Station Grp., Inc., 56 F.4th 1302, 1309 (11th Cir. 2023) (“Be-

cause these determinations are mixed questions of law and fact, we

review them de novo.”); R.L. v. Miami-Dade Cnty. Sch. Bd., 757 F.3d

1173, 1187 (11th Cir. 2014) (“[M]ixed questions of law and fact we

review de novo.”); Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir.

2004) (“We review de novo the district court’s resolution of ques-

tions of law and of mixed questions of law and fact.”) (alteration

adopted) (quotation marks omitted); see also McNair v. Campbell,

416 F.3d 1291, 1297 (11th Cir. 2005) (“The district court’s factual

findings are reviewed for clear error, while mixed questions of law

and fact are reviewed de novo.”).

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16 Opinion of the Court 22-13300

But the question is not before us as a matter of first impres-

sion. We must follow precedent embodied in published opinions.

And in situations like this one where there is conflicting precedent,

an intra-circuit conflict, we follow the precedent set out in our

“well-established approach to resolving conflicts in our precedent.”

Washington v. Howard, 25 F.4th 891, 899 (11th Cir. 2022) (quotation

marks omitted). It prescribes that we first try to find a “basis of

reconciliation from the apparently conflicting decisions and then

apply that reconciled rule.” Id. at 900 (quotation marks omitted).

If that is not possible, then “we must follow the earliest precedent

that reached a binding decision on the issue.” Id. (quotation marks

omitted).

Here, the application of two completely different standards

of review cannot be reconciled. De novo review is not clear error

review, nor is there any other apparent basis for reconciling the

two lines of precedent. So we apply our earliest binding precedent

on the issue. As far as we can tell, that earliest precedent is the 1968

pre-split Fifth Circuit decision in Astron Industrial Associates, Inc. v.

Chrysler Motors Corp., which held that “privity is a factual question,

and the District Court should not be reversed unless its determina-

tion is clearly erroneous.” 405 F.2d at 961 (citing Towle v. Boeing

Airplane Co., 364 F.2d 590, 593 (8th Cir. 1966)). Accordingly, we

apply clear error review to determine if the board members are in

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privity with the Board, and we review de novo the district court’s

determination of the remaining res judicata elements. 5

III. DISCUSSION

The preclusive effect of prior judgments in federal court is

governed by “uniform federal rules of res judicata.” Taylor v.

Sturgell, 553 U.S. 880, 891 (2008) (alterations accepted) (quotation

marks omitted). The purpose behind the doctrine of res judicata is

to “preclud[e] parties from contesting matters that they have had a

full and fair opportunity to litigate” and to “protect against the ex-

pense and vexation attending multiple lawsuits, conserve judicial

resources, and foster reliance on judicial action by minimizing the

possibility of inconsistent decisions.” Id. at 892 (alterations

adopted) (quotation marks omitted).

The party asserting res judicata bears the burden of

“show[ing] that the later-filed suit is barred.” In re Piper Aircraft

Corp., 244 F.3d at 1296. That’s the Board, which contends that the

district court properly granted summary judgment in its favor be-

cause Rodemaker II is barred by res judicata based on Rodemaker I.

There is no dispute that two of the four elements of res judicata are

met: (1) a court of competent jurisdiction, (2) rendered a final deci-

sion. See Rodemaker I, 859 F. App’x at 453.

The other two res judicata elements are the disputed ones:

whether the two lawsuits involve (3) the same parties or ones in

5 For whatever it is worth, we do not think that it would change the

result of this appeal if we were reviewing de novo instead of for clear error.

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18 Opinion of the Court 22-13300

privity with them and (4) the same causes of action. Rodemaker

contends that the defendants in Rodemaker I, the board members

sued in their individual capacities, are not in privity with the re-

maining defendant in Rodemaker II, the Board. He also argues that

the causes of action in the two cases are different. We will take up

those issues in that order.

A. PRIVITY

Privity is not a concept whose boundaries have been staked

out with mathematical precision. It has been somewhat circularly

defined as the “relationship between one who is a party of record

and a nonparty that is sufficiently close so a judgment for or against

the party should bind or protect the nonparty.” Hunt, 891 F.2d at

1560 (quotation marks omitted); see also Sw. Airlines Co., 546 F.2d at

95 (“[T]he term privity in itself does not state a reason for either

including or excluding a person from the binding effect of a prior

judgment, but rather it represents a legal conclusion that the rela-

tionship between the one who is a party on the record and the non-

party is sufficiently close to afford application of the principle of

preclusion.”) (footnote omitted); Pemco Aeroplex, 383 F.3d at 1286

(explaining that “privity” is “a flexible legal term” that “compris[es]

several different types of relationships,” and generally applies

“when a person, although not a party, has his interests adequately

represented by someone with the same interests who is a party”).

More helpful is the non-exhaustive list of facts or factors the

Supreme Court has provided that favor a finding of privity:

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(1) the nonparty agreed to be bound by the litigation

of others; (2) a substantive legal relationship existed

between the person to be bound and a party to the

judgment; (3) the nonparty was adequately repre-

sented by someone who was a party to the suit; (4)

the nonparty assumed control over the litigation in

which the judgment was issued; (5) a party attempted

to relitigate issues through a proxy; or (6) a statutory

scheme foreclosed successive litigation by nonliti-

gants.

Griswold, 598 F.3d at 1292 (citing Taylor, 553 U.S. at 893–95); see

Taylor, 553 U.S. at 893 & n.6 (explaining that this list “is meant only

to provide a framework” for consideration of privity issues, “not to

establish a definitive taxonomy”).

Rodemaker argues that because he sued the board members

in their individual capacity in Rodemaker I, they cannot be in privity

with the Board in this case. That brings up the difference between

individual capacity and official capacity claims. Claims against in-

dividuals in their official capacities “generally represent only an-

other way of pleading an action against an entity of which an officer

is an agent,” and are “in all respects other than name, to be treated

as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165–

66 (1985) (quotation marks omitted). That’s because an award of

damages in an official capacity suit is paid by the government entity

itself, so that entity is the real party in interest in that type of law-

suit. Id. at 166. A lawsuit against an individual in his individual

capacity, by contrast, “can be executed only against the official’s

personal assets,” meaning that the government itself is not

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20 Opinion of the Court 22-13300

responsible for any damages award from the suit (although, of

course, it may voluntarily pay them to relieve its official of the bur-

den of personally doing so). Id.

If the government is on the hook for damages in a lawsuit

against an official in his official capacity, it should not later have to

be on the hook for damages again based on the same conduct in a

different lawsuit where it is a named defendant. So it makes sense

that “[g]enerally, a government official sued in his or her official

capacity is considered to be in privity with the government, but a

government official sued in his or her individual capacity is not.”

Lozman v. City of Riviera Beach, 713 F.3d 1066, 1075 n.7 (11th Cir.

2013); cf. O’Connor v. Pierson, 568 F.3d 64, 71 (2d Cir. 2009) (holding

that members of a board of education sued in their official capacity

were in privity with the Board). Because the board members were

sued in their individual capacity in Rodemaker I, official-capacity-

and-entity privity is not present here. But that does not mean that

another type of, or basis for, privity does not exist here.

The Supreme Court has told us that there are other ways for

privity to exist. See Taylor, 553 U.S. at 893–95. The question is

whether the relationship between the parties in question was “suf-

ficiently close so a judgment for or against the [individuals] should

bind or protect the [Board].” Hunt, 891 F.2d at 1560 (quotation

marks omitted). And where, as here, the five board members were

able to take the action they took because they controlled the Board,

the law slaps a privity label on the relationship and treats what the

members did as action by the Board. When one party’s actions are

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22-13300 Opinion of the Court 21

legally another party’s actions, those two parties have the kind of

substantive legal relationship that establishes privity. See Harmon

Indus., Inc. v. Browner, 191 F.3d 894, 903 (8th Cir. 1999) (“Privity

exists when two parties to two separate suits have a close relation-

ship bordering on near identity”) (quotation marks omitted).

Contrast the relationship between the board member de-

fendants and the Board to the relationship between a police officer

and the police department for which he works. While performing

his official duties, the police officer acts as a representative of the

police department, but he cannot reasonably be said to be acting as

the department, at least not when he is sued in his individual ca-

pacity. He can’t be said to be the department because he does not

control the department. But here, the five board members, when

performing their official duties and acting as a majority of the

board, do control the Board; as the controlling majority, they are

acting as the Board. Their collective decision not to renew Rode-

maker’s contract was a decision of the Board and resulted in the

non-renewal of the contract.

Our decision about this is consistent with the precedent of

other circuits. See Schuster v. Martin, 861 F.2d 1369, 1373 (5th Cir.

1988) (holding that members of a hospital’s board of trustees were

in privity with the hospital under Mississippi law because “[a]ll of

the allegations made by [the plaintiff] refer to actions taken by [the

board members] as members of [the hospital’s] board or executive

committee. Moreover, only these entities could have taken the ac-

tions complained of”); Licari v. City of Chicago, 298 F.3d 664, 667 (7th

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22 Opinion of the Court 22-13300

Cir. 2002) (holding that members of a policemen’s retirement

board sued in their individual capacity were in privity with the

Board itself under Illinois law because “a government and its offic-

ers are in privity for purposes of res judicata” and the plaintiff “does

not allege any action taken against him by the [board members] .

. . that is separate and distinct from any action taken by the Board”);

Harmon, 191 F.3d at 903 (finding privity where two parties to two

separate suits “have a close relationship bordering on near iden-

tity”) (quotation marks omitted).

The district court did not err at all, much less clearly err, in

determining that the Board is in privity with the five of its nine

members who were sued in their individual capacity in Rodemaker

I. 6

B. SAME CAUSE OF ACTION

6 Rodemaker also argues that the district court erred in considering

the Board’s argument, raised for the first time in its reply brief, that it is in

privity with the board members because, even though it wasn’t a party in

Rodemaker I, it “controlled the litigation.” Cf. Taylor, 553 U.S. at 895 (explain-

ing that “a nonparty is bound by a judgment if she assumed control over the

litigation in which that judgment was rendered”) (alteration adopted) (quota-

tion marks omitted). We need not consider that issue because it does not af-

fect our reasoning or conclusion. There was privity regardless of whether the

Board controlled the litigation on the defense side in Rodemaker I.

And for the same reason, we need not consider the Board’s argument

based on Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498 (11th Cir. 1990),

that it is in privity with the board members because they acted as its agents in

voting to non-renew Rodemaker’s contract.

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22-13300 Opinion of the Court 23

Rodemaker also contends that the district court erred in con-

cluding that Rodemaker I and Rodemaker II involve the same causes

of action because (1) §§ 1981 and 1983 are different statutes with

causation standards different from those of Title VII, and (2) he

sued different parties in Rodemaker II than he did in Rodemaker I.

We are not persuaded.

Determining whether two cases involve the same cause of

action for the purposes of res judicata is an inquiry “concerned

with the substance, and not the form, of the [two] proceedings.”

Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1270 (11th Cir. 2002).

We ask whether the claims “arise[] out of the same nucleus of op-

erative facts, or [are] based upon the same factual predicate.” TVPX

ARS, Inc., 959 F.3d at 1325 (quotation marks omitted). Causes of

action share a nucleus of operative fact if “the same facts are in-

volved in both cases, so that the present claim could have been ef-

fectively litigated with the prior one.” Lobo v. Celebrity Cruises, Inc.,

704 F.3d 882, 893 (11th Cir. 2013) (quotation marks omitted). But

if “full relief [was not] available in the first action,” res judicata does

not bar the second action. TVPX ARS, Inc., 959 F.3d at 1325 (quota-

tion marks omitted).

The claims in both Rodemaker lawsuits grew out of the same

nucleus of operative fact and were based on the same factual pred-

icate: the allegedly racially discriminatory decision not to renew

Rodemaker’s employment contract. While there were more fac-

tual allegations and specifics about the non-renewal of the contract

in the second lawsuit, the non-renewal was at the center or core of

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24 Opinion of the Court 22-13300

both complaints. Factual allegations do not need to be identical to

arise out of the same nucleus of operative fact. The nucleus is the

core, not the core and every layer, crack, and fissure.

That the Rodemaker I complaint contained claims under

§§ 1981 and 1983 while the Rodemaker II complaint contained

claims brought under Title VII is not relevant to the inquiry. See

Lobo, 704 F.3d at 893 (holding that Seaman’s Wage Act claim and

Labor Management Relations Act claims arose from the same nu-

cleus of operative fact because the plaintiff alleged the same facts

as the basis for both claims). Res judicata “applies not only to the

precise legal theory presented in the prior case, but to all legal the-

ories and claims arising out of the same nucleus of operative fact.”

Hunt, 891 F.2d at 1561. Because legal theories are different from

operative facts, a different legal theory does not necessarily mean a

different nucleus of operative fact.

Nor is the fact that the different claims may have been sub-

ject to different standards of proof relevant. See Davila v. Delta Air

Lines, Inc., 326 F.3d 1183, 1188 (11th Cir. 2003) (explaining that “the

fact that the elements of proof in the context of [the second claim]

differ from those at issue in [the first claim] is not a basis on which

we may hold res judicata to be inapplicable”).

Rodemaker argues that he would have had to add the Board

as a party to Rodemaker I to bring his Title VII claim in that lawsuit

because Title VII claims cannot be brought against individuals. See

Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.

2000). From that he argues that the two complaints involved

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22-13300 Opinion of the Court 25

different causes of action. But there was nothing preventing him

from naming the Board as a party in Rodemaker I. See Fed. R. Civ.

P. 20(a)(2)(B) (allowing a plaintiff to join any party as a defendant if

“any question of law or fact common to all defendants will arise in

the action”). And, in any event, the identity of the defendant

against whom claims are brought is not relevant to the inquiry

about the same cause of action element: whether the claims share

a common nucleus of operative fact. See Lobo, 704 F.3d at 893. Sim-

ilarity of parties is covered in the privity element of res judicata,

and as we explained earlier, the privity requirement is met here. See

supra at 22.

In the district court, Rodemaker argued that he could not

have brought his Title VII claim in Rodemaker I because the EEOC

had not yet issued him his right to sue letters. Thus he contended

that Rodemaker I could not be the same cause of action as Rodemaker

II because “full relief [was not] available in” Rodemaker I. TVPS ARS,

Inc., 959 F.3d at 1325 (quotation marks omitted). The district court

rejected that argument, and properly so. We have held that the fact

a plaintiff did not have when he filed his first lawsuit a right to sue

letter that was necessary for the claim he raised in his second law-

suit does not prevent it from being barred by res judicata. See Jang

v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000) (explaining

that “plaintiffs may not split causes of action to bring, for example,

state law claims in one suit and then file a second suit with federal

causes of action after receiving a ‘right to sue’ letter”). Rodemaker

argues that Jang is inapplicable “because the critical element for the

application of res judicata — identity of parties — existed” in Jang

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26 Opinion of the Court 22-13300

but does not exist here. But that attempted distinction fuses the

privity element and the same cause of action element. They are

distinct elements, and neither one requires that parties be identical

for res judicata to apply. Rodemaker’s attempt to distinguish Jang

doesn’t work.

Rodemaker I and Rodemaker II involved the same causes of ac-

tion. That means all four elements of res judicata are met, and the

district court properly granted summary judgment in favor of the

Board in Rodemaker II.

III. CONCLUSION

Res judicata is concerned with substance over form. Claims

that are based on the same issues and involve the same entities

should generally be litigated together. In the present lawsuit, Rode-

maker seeks to relitigate a dispute already decided in Rodemaker I.

He had a “full and fair opportunity to litigate” the dispute in that

first lawsuit. Taylor, 553 U.S. at 892 (quotation marks omitted).

Our application of res judicata to bar his attempted do-over in this

second lawsuit carries out the purposes of res judicata, which are

to “conserve judicial resources” and “minimiz[e] the possibility of

inconsistent decisions.” Id. (alteration adopted) (quotation marks

omitted).

AFFIRMED.