Petition for Writ of Certiorari — Alan Rodemaker, Petitioner v. City of Valdosta Board of Education, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Eleventh Circuit (August 5, 2024) ..................... 1a

Order Granting Motion to Dismiss, U.S. District

Court for the Middle District of Georgia

(August 31, 2022) ............................................. 26a

REHEARING ORDER

Order Denying Petition for Rehearing,

U.S. Court of Appeals for the Eleventh

Circuit (October 2, 2024) .................................. 51a

App.1a

OPINION, U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

(AUGUST 5, 2024)

[ PUBLISH ]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

ALAN RODEMAKER,

Plaintiff-Appellant,

v.

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, 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.

________________________

No. 22-13300

App.2a

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 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 qualified immunity grounds, but we

reversed that denial after concluding that Rodemaker

had failed to state a claim against them. The result

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.

App.3a

was judgment for the defendant board members in

Rodemaker I.

Then came Rodemaker II in 2021. The complaint

in it named the same black board members as before,

but this time it also included 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-discrimination

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

Both complaints claim that the Board and its black

members discriminated 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 determining

that the Board was in privity with the board member

defendants 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.

App.4a

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 their individual

capacities. It claimed racial discrimination in violation

of 42 U.S.C. §§ 1981 and 1983 against all five defendants, seeking 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 reputation [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”

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 complaints, and in this appeal Rodemaker has

not raised any issue with that reliance 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 summary

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

App.5a

from five white members and four black members to

four white members and five black members.

When it came time to renew the teachers’ and

coaches’ contracts, board member Lee moved to consider

Rodemaker’s contract 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 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 occurred 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 defendants’ 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 dismissal.

See id.

App.6a

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 Valdosta 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

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

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 Rodemaker

II is not relevant.

App.7a

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 materially identical to those in Rodemaker I, albeit slightly more detailed. 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 exemplary,” and there were no complaints or any

evidence of misconduct 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 majoritywhite 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

App.8a

that job applications submitted to the Board should

indicate whether the applicant was black or white.

For the 2020 school year, the Valdosta City

Schools Superintendent had recommended that the

Board renew Rodemaker’s contract for another year.

Generally, once the Superintendent recommended

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 coaching contract be considered

separately” from all other recommendations. 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 private 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 reconsider 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 defeated 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

App.9a

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 . . . without

regard to the well-being of the black players.” Seven

people, 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 discussed 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 contract 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 candidate, 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

complaint on the merits. A couple months later, the

Board filed a motion for summary judgment, arguing

App.10a

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 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 “commonality of interests for purposes of

defending against [Rodemaker’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 Rodemaker I and II shared the same cause of

action because the claims in both arose out of the same

nucleus of operative facts.

App.11a

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

entry of judgment in favor of the Board in Rodemaker

II based on res judicata.

II. The Elements of Res Judicata and the

Applicable Standard of Review for It

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 “review de novo a district court’s determination

of res judicata,” but that “whether a party is in privity

with another for preclusion purposes 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-circuit conflict in our decisions

about the standards of review for privity 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

App.12a

a party is in privity with another for preclusion purposes

is a question of fact that is reviewed for clear error.”)

(quotation marks omitted); Griswold v. Cnty. of

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

(“[W]hether a party is in privity with another for preclusion purposes is a question of fact that is reviewed

for clear error.”) (quotation marks omitted); Pemco

Aeroplex, 383 F.3d at 1285 (“[W]hether a party is in

privity with another for preclusion purposes is a

question of fact that is reviewed for clear error.”);

Hart, 787 F.2d at 1472 (“A district court’s determination

as to whether interrelated corporations are in privity

with each other is a factual question which should not

be reversed unless its determination is clearly erroneous.”); 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 determination 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 conclusions as to res judicata are conclusions

of law, and are thus reviewable de novo by this Court.”);

id. at 1561 (“The question of whether sufficient privity

exists to warrant application of res judicata 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.

App.13a

Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977)) (explaining that “federal cases have recognized that ‘privity’

denotes a legal conclusion”); 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.”) (citation 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 reviewed 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

App.14a

decided in the first instance by the district court”)

(quotation marks omitted), with Riddle v. Cerro Wire

& Cable Grp., Inc., 902 F.2d 918, 921-22 (11th Cir.

1990) (explaining 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 undisputed, and the issue is whether the facts

satisfy the statutory standard”). And for mixed questions

of law and fact, we normally review the underlying

factual determinations for clear error, while reviewing

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) (“Because 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 questions 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.”).

App.15a

But the question is not before us as a matter of

first impression. 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 “wellestablished 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 determination 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 privity with

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

determination of the remaining res judicata elements.5

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.

App.16a

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 expense 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 because 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 decision. 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 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 remaining 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.

App.17a

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 relationship between the one who is a party

on the record and the nonparty 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:

(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 represented 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

App.18a

a proxy; or (6) a statutory scheme foreclosed

successive litigation by nonlitigants.

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 individuals in their official capacities “generally

represent only another 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 lawsuit. 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 responsible for any

damages award from the suit (although, of course, it

may voluntarily pay them to relieve its official of the

burden 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

App.19a

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-andentity 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 “sufficiently 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 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 relationship bordering on near identity.”)

(quotation marks omitted).

Contrast the relationship between the board

member defendants and the Board to the relationship

between a police officer and the police department for

which he works. While performing his official duties,

App.20a

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 capacity. 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 Rodemaker’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 actions complained

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

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 officers 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

identity”) (quotation marks omitted).

App.21a

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

Rodemaker also contends that the district court

erred in concluding 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

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 (explaining that “a nonparty is bound by

a judgment if she assumed control over the litigation in which

that judgment was rendered”) (alteration adopted) (quotation

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

not affect 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.

App.22a

of operative 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 involved in both

cases, so that the present claim could have been effectively 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

(quotation marks omitted).

The claims in both Rodemaker lawsuits grew out

of the same nucleus of operative fact and were based

on the same factual predicate: the allegedly racially

discriminatory decision not to renew Rodemaker’s

employment contract. While there were more factual

allegations and specifics about the non-renewal of the

contract in the second lawsuit, the non-renewal was

at the center or core of 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

nucleus 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 theories and claims

arising out of the same nucleus of operative fact.”

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

App.23a

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 subject 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 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.

Similarity 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

App.24a

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 lawsuit 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 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 action. 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, Rodemaker seeks to

relitigate a dispute already decided in Rodemaker I.

App.25a

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.

App.26a

ORDER GRANTING MOTION TO DISMISS,

U.S. DISTRICT COURT FOR THE MIDDLE

DISTRICT OF GEORGIA

(AUGUST 31, 2022)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

VALDOSTA DIVISION

________________________

ALAN RODEMAKER,

Plaintiff,

v.

CITY OF VALDOSTA

BOARD OF EDUCATION, ET AL.,

Defendants.

________________________

Civil Action No. 7:21-CV-76 (HL)

Before: Hugh LAWSON, Senior Judge.

ORDER

Plaintiff Alan Rodemaker brought this action for

alleged violations of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17, following Defendants’ decision not to renew his employment as the

head football coach at Valdosta High School. Now

before the Court are Defendants Warren Lee, Liz

Shumphard, Tyra Howard, Debra Bell, and Kelisa

Brown’s Motions to Dismiss. (Docs. 7, 8, 11, 12, 13).

App.27a

Also before the Court is Defendant the City of Valdosta

Board of Education or, in the alternative, the Valdosta

City School District’s Motion for Summary Judgment.

(Doc. 31). Following a hearing on May 19, 2022, and

after careful consideration, the Court GRANTS

Defendants’ motions.

I.

Background

Alan Rodemaker began his career at Valdosta

High School as an assistant football coach and gym

teacher in 2010. (Doc. 1, ¶¶ 15-16). In 2016, Rodemaker

became the head football coach. (Id. at ¶ 17). Under

Rodemaker’s guidance during the 2016 season, the

Valdosta High School football team won the Georgia

State Championship for Division 6A for the first time

in eighteen years. (Id.). The team reached the quarterfinals of the state championship two of the next three

years. (Id. at ¶ 18). With seventeen of twenty-two

starting players set to return for the 2020-2021 school

year, the football community widely perceived Valdosta

High School as a contender for another state title. (Id.

at ¶ 19).

Rodemaker was well regarded as both a teacher

and a football coach. (Id. at ¶¶ 20-21). For ten years,

the Valdosta Board of Education (“School Board” or

“Board”) renewed Rodemaker’s teaching and coaching

contract without consequence. (Id. at ¶ 22). In January

2020, the Superintendent of Valdosta City Schools

again recommended renewing Rodemaker’s contract,

which was set to expire on June 30, 2020.1 (Id. at

1 The City of Valdosta Board of Education is the governing body

for the City of Valdosta School District. (Id. at ¶ 3). The Valdosta

City School Superintendent makes employment recommendations

App.28a

¶¶ 23-24, 28). The Superintendent presented his recommendation at the School Board’s January 28, 2020

meeting. (Id. at ¶ 29). Ordinarily, the School Board

members consider all of the Superintendent’s contract

renewal recommendations in a single vote rather than

reviewing each contract individually. (Id. at ¶ 30).

During this meeting, however, Defendant Warren Lee

moved the Board to consider Rodemaker’s contract

separately. (Id. at ¶ 31-33). The Board ultimately

voted 4-5 not to renew Rodemaker’s contract. (Id. at

¶ 35). The vote was divided along racial lines, with

each of the five black members of the School Board,

Defendants Lee, Liz Shumphard, Tyra Howard, Kalisa

Brown, and Debra Bell, voting to end Rodemaker’s

coaching tenure with the school district. (Id.). These

Board members provided no explanation for their

decision. (Id. at ¶ 36).

In response to public outcry, the Superintendent’s

recommendation to renew Rodemaker’s contract was

included on the School Board’s February 11, 2020,

meeting agenda. (Id. at ¶ 37). When the meeting

convened, Defendant Lee moved to remove the item

from the agenda. (Id. at ¶ 38). Defendants Brown,

Howard, and Shumphard supported Lee’s motion, but

the motion was defeated 4-5, and the recommendation

to renew Rodemaker’s contract was once again put to

a vote. (Id. at ¶ 45-48). The Board returned a 4-5 vote

opposing renewal of Rodemaker’s contract. (Id. at

¶ 48). The decision remained divided along racial

lines. (Id.). Rodemaker, who is white, alleges that the

to the Board of Education. (Id.). The Board evaluates and acts

upon those recommendations. (Id.).

App.29a

School Board’s decision to end his employment was

motivated by racial animus. (Id. at ¶¶ 50, 52-53, 59).

Rodemaker filed a Charge of Discrimination

with the Equal Employment Opportunity Commission

(“EEOC”) on April 24, 2020, alleging that the School

Board discriminated against him based on his race.

(Doc. 1-1). He filed a second Charge of Discrimination

on July 15, 2020. (Doc. 1-2). Around the same time, on

April 23, 2020, Rodemaker filed a lawsuit against

Defendants Lee, Brown, Howard, Shumphard, and

Brown in their individual capacities, alleging Defendants discriminated against him based on his race in

violation of 42 U.S.C. § 1981 and § 1983. See Rodemaker v. Shumphard, Case No. 7:20-CV-75 (HL) (M.D.

Ga. Apr. 23, 2020). The lawsuit was based on the same

sequence of events outlined in the present action.

The individual Defendants moved to dismiss

Plaintiff’s original lawsuit, arguing that they were

entitled to qualified immunity because Rodemaker failed

to allege sufficient facts to state a race discrimination

claim under § 1981 and § 1983. The Court expressed

skepticism regarding the plausibility of Rodemaker’s

claims, calling it a “close case,” but nevertheless concluded Rodemaker adequately alleged a violation of a

clearly established law. Rodemaker v. Shumphard,

Case No. 7:20-CV-75 (HL) (M.D. Ga. Dec. 1, 2020). The

Court therefore denied Defendants’ motions to dismiss

and allowed the case to proceed. Id. Defendants

appealed. On June 8, 2021, the Eleventh Circuit Court

of Appeals found the Court erred by not dismissing

Rodemaker’s complaint and vacated the Court’s

decision. Rodemaker v. Shumphard, 859 F. App’x 450,

453 (2021). The Court then dismissed Rodemaker’s

App.30a

case and entered judgment for Defendants on September

8, 2021.

The EEOC issued a Dismissal and Notice of

Rights on March 22, 2021. (Docs. 1-3, 1-4). Rodemaker

filed this action on June 18, 2021, alleging Defendants

discriminated against him based on his race in violation

of Title VII and that the individual Defendants

conspired to deprive him of his position as the head

football coach. (Doc. 1). This lawsuit and the previous

lawsuit share the same nucleus of operative facts,

namely that the School Board voted not to renew

Plaintiff’s employment contract and that the vote fell

along racial lines. Having failed to succeed on his

individual capacity claims against the Board members,

Plaintiff now names as Defendants the School Board

and the five black School Board members as agents of

the School Board.

In this action, Rodemaker includes additional facts

concerning his replacement as head football coach.

Rodemaker alleges that despite their best effort to

hire a black man to fill his position, the School Board

was unable to secure a candidate. (Doc. 1, ¶ 53). The

Board extended an offer to Rush Probst, a white man.

(Id. at ¶ 54). A scandal involving Probst soon erupted,

and the Board rescinded the offer in April 2021. (Id.

at ¶¶ 55-56). The Board thereafter named Shelton

Felton, a black man, as head coach. (Id. at ¶ 56). Rodemaker claims the University of Tennessee terminated

Felton and that he is an inferior coaching candidate

than Rodemaker. (Id. at ¶¶ 57-58).

II. Motions to Dismiss

In his Complaint, Plaintiff asserts two claims

against the individual Defendants. First, Plaintiff

App.31a

alleges Defendants, as agents of the School Board

and/or the School District, violated his rights under

Title VII. Plaintiff, who is white, contends Defendants,

the five black members of the Board, terminated his

employment as the head football coach with the specific

intention of replacing him with a black coach. Plaintiff

further alleges the individual Defendants entered into

a conspiracy to deprive him of his employment based

on his race. Defendants move under Federal Rule of

Civil Procedure 12(b)(6) to dismiss each of these

claims for failure to state a viable cause of action.

A. Motion to Dismiss Standard

When ruling on a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), a court must

accept “all well-pleaded facts . . . as true, and the

reasonable inferences therefrom are construed in the

light most favorable to the plaintiff.” Bryant v. Avado

Brands, Inc., 187 F.3d 1271,1273 n.1 (11th Cir. 1999).

To avoid dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim for

relief that is plausible on its face.” Ashcroft v. lqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). While a complaint

need not contain detailed factual allegations, it must

provide “more than labels or conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555. The allegations

“must be enough to raise a right of relief above the

speculative level on the assumption that all the

allegations in the complaint are true (even if doubtful

in fact).” Id.

“The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer

App.32a

possibility that a defendant has acted unlawfully. Where

a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line

between possibility and plausibility of entitlement to

relief. lqbal, 556 U.S. at 678. Further, while a court

must accept all factual allegations in a complaint as

true, this principle “is inapplicable to legal conclusions.

Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements,” are

insufficient. Id. The complaint must “give the defendant

fair notice of what the [plaintiff’s] claim is and the

grounds upon which it rests.” Twombly, 550 U.S. at

556 (citation and internal quotations omitted).

B. Discussion

1. Title VII

Defendants argue, and Plaintiff does not dispute,

that members of a board of education cannot be held

liable under Title VII in either their individual or

official capacities. “The relief granted under Title VII

is against the employer, not individual employees

whose actions would constitute a violation of the Act.”

Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.

1991) (emphasis in original) (explaining that recovery

under Title VII shall be against the employer, either

by naming the employer directly or by naming a

supervisory employee as an agent of the employer); see

also 42 U.S.C. § 2000e(b) (definition of “employer”).

The Eleventh Circuit accordingly has consistently held

that individual school board members cannot be sued

in their individual capacities under Title VII. See

Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1234

n.3 (11th Cir. 2016); Hinson v. Clinch Cnty, Ga. Bd. of

Educ., 231 F.3d 821, 827 (11th Cir. 2000); Busby, 931

App.33a

F.2d at 772. The Court therefore GRANTS Defendants’

motion to dismiss Plaintiff’s Title VII claims against

the individual Defendants.

2. Conspiracy

Plaintiff asserts a conspiracy claim against the

individual Defendants in Count Three of his Complaint.

According to Plaintiff, the five black School Board

members entered into an agreement to deprive him of

his position as the head football coach at Valdosta

High School because he is white. Plaintiff alleges these

Board members knew their block vote would accomplish

their goal of removing Plaintiff and replacing him

with a black coach.

Plaintiff’s Complaint does not articulate a specific

legal basis for his conspiracy claim. However, in his

response to Defendants’ motion to dismiss, Plaintiff

states that his conspiracy claim arises under 42

U.S.C. § 1985(3). Defendants argue that to the extent

Plaintiff’s conspiracy claim is based on § 1985(3), he

has failed to state a claim. Alternatively, Defendants

contend Plaintiff’s conspiracy claim is barred by the

intracorporate conspiracy doctrine.

a. Section 1985

Section 1985(3) makes it unlawful for two or more

persons to conspire for the purpose of depriving any

person or class of persons of equal protection of the

laws or equal protection or immunities under the

laws. See 42 U.S.C. § 1985(3). To state a claim under

§ 1985(3), “a plaintiff must allege: (1) defendants

engaged in a conspiracy; (2) the conspiracy’s purpose

was to directly or indirectly deprive a protected person

or class the equal protection of the laws, or equal

App.34a

privileges and immunities under the laws; (3) a

conspirator committed an act to further the conspiracy;

and (4) as a result, the plaintiff suffered injury to

either his person or his property, or was deprived of a

right or privilege of a citizen of the United States.”

Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312

(11th Cir. 2010). “The language requiring intent to

deprive of equal protection, or equal privileges and

immunities, means that there must be some racial, or

perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971).

“Section 1985(3) provides no substantive rights

itself; it merely provides a remedy for violation of the

rights it designates.” Great Am. Fed. Say. & Loan

Ass’n v. Novotny, 442 U.S. 366, 372 (1979). “The only

rights the Supreme Court has expressly declared

enforceable . . . under § 1985(3) are the right to interstate

travel and the right against involuntary servitude.”

Jimenez, 596 F.3d at 1312. In contrast, the Supreme

Court has specifically held that § 1985(3) “may not be

invoked to redress violations of Title VII.” Id. at 378;

see also Jimenez, 596 F.3d at 1312 (“[C]onspiracies to

violate rights protected by Title VII cannot form the

basis of § 1985(3) suits.”); but see Dickerson v. Alachua

Cnty. Comm’n, 200 F.3d 761, 766-67 (11th Cir. 2000)

(holding that Title VII does not preempt a § 1985(3)

claim arising out of the same underlying facts when

the § 1985(3) claim is based on an assertion of a

constitutional right). In Novotny, the Supreme Court

reasoned that permitting a plaintiff to use § 1985(3)

to enforce a right created under Title VII would impair

the effectiveness of Title VII’s remedial scheme. Id.

App.35a

Plaintiff s Complaint not only fails to invoke

§ 1985(3) but also is devoid of any allegations concerning

a deprivation of a constitutional right. Unlike Dickerson,

where the plaintiff’s § 1985(3) claim was based on

alleged violations of the Fourteenth Amendment rights

to equal protection of the laws and due process, 200

F.3d at 766, Plaintiff’s conspiracy claim makes no

mention of a specific constitutional right. Plaintiff

alleges only that the individual Defendants entered

into an agreement to vote in unison to terminate

Plaintiff’s employment as the head football coach

because he is white and because they desired a black

coach. These factual allegations plainly fall under the

province of Title VII. Plaintiff’s § 1985(3) claim is thus

preempted by Title VII. Accordingly, the Court GRANTS

Defendants’ motion to dismiss Plaintiff’s conspiracy

claim.

b. Intracorporate Conspiracy

Doctrine

Even if Title VII did not preempt Plaintiff’s

§ 1985(3) claim, Plaintiff’s conspiracy claim is barred

by the intracorporate conspiracy doctrine. Under the

intracorporate conspiracy doctrine,

a corporation’s employees, acting as agents

of the corporation, are deemed incapable of

conspiring among themselves or with the

corporation. This doctrine stems from basic

agency principles that “attribute acts of

agents of a corporation to the corporation, so

that all of their acts are considered to be

those of a single legal actor.” The reasoning

behind the intracorporate conspiracy doctrine

is that it is not possible for a single legal

App.36a

entity consisting of the corporation and its

agents to conspire with itself, just as it is not

possible for an individual person to conspire

with himself.

Dickerson, 200 F.3d at 767 (quoting Dussouy v. Gulf

Coast Inv. Corp., 660 F.2d 594, 603 (11th Cir. 2000)).

The doctrine applies both to private corporations and

public government entities. Id.

Plaintiff argues, without authority, that the intracorporate conspiracy doctrine does not apply because

Defendants are elected officials and not employees of

the Board of Education. Plaintiff’s argument ignores

that the doctrine applies to agents, not just employees.

See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1261

(11th Cir. 2010). Elected or not, Defendants together

comprise and indisputably serve as agents of the

School Board, a single public entity. As agents acting

on behalf of a single entity, Defendants cannot conspire

with themselves or the entity to deprive Plaintiff of his

employment for an unlawful purpose. See Dickerson,

200 F.3d at 769.

Plaintiff’s assertion that the doctrine does not

apply because Defendants conspired with non-Board

members is equally unavailing. Plaintiff’s Complaint

contains no allegations to that effect. While Plaintiff

pled that the Board permitted community members to

speak on the subject of Plaintiff’s contract renewal at

a public hearing and that Defendants improperly

discussed school business with persons outside of the

Board, Plaintiff’s Complaint in no way links these

other individuals to the alleged conspiracy between

Defendants to vote a certain way.

App.37a

Plaintiff further argues that certain exceptions

preclude application of the intracorporate conspiracy

doctrine in this case. Though never explicitly adopted

by the Eleventh Circuit, the Circuit has discussed

exceptions to the intracorporate conspiracy doctrine

rule observed by other circuits. Id. at 770. Other jurisdictions recognize exceptions (1) for “convictions

involving criminal charges of conspiracy;” (2) for acts

outside of an agents’ employment; (3) where the

employees have an “independent personal stake” in

their unconstitutional acts; or (4) where the employees

“engage in a series of discriminatory acts as opposed

to a single action” over a prolonged period of time. Id.

at 769-70.

Plaintiff contends three exceptions apply in this

case. First, Plaintiff argues Defendants acted outside

the scope of the Board of Education’s legal purpose.

Next, Plaintiff suggests Defendants’ conduct was

criminal in nature, so they should not be afforded the

shield of the intracorporate conspiracy doctrine. Finally,

Plaintiff argues Defendants engaged in a series of

discriminatory acts rather than a single action.

The only one of these exceptions the Eleventh

Circuit has applied involves application of the intracorporate conspiracy doctrine where the alleged

conspiratorial conduct violates federal criminal law.

See McAndrew v. Lockhead Martin Corp., 206 F.3d

1031, 1034 (11th Cir. 2000). In McAndrew, the Eleventh

Circuit held “that just as the intracorporate conspiracy

doctrine cannot shield a criminal conspiracy from

prosecution under the federal criminal code, the doctrine

cannot shield the same conspiracy, alleging the same

criminal wrongdoing, from civil liability arising under”

§ 1985(3). Id. This case involves an alleged civil

App.38a

conspiracy. Plaintiff’s Complaint asserts no allegations

of a criminal conspiracy involving a violation of the

federal criminal code. Accordingly, this exception does

not apply.

Plaintiff likewise has articulated no facts in

support of his claim that Defendants had a personal

stake in removing Plaintiff as the head football coach.

Plaintiff also has not adequately alleged that Defendants engaged in a series of discriminatory acts over an

extended period of time. Rather, Plaintiff’s case arises

out of a vote, and a re-vote shortly thereafter, not to

renew Plaintiff’s employment contract. Concluding that

none of the exceptions to the intracorporate conspiracy

doctrine apply, the Court finds that Plaintiff has

failed to state a viable conspiracy claim and GRANTS

Defendants’ motion to dismiss Count Three of Plaintiff’s

Complaint.

3. Attorney’s

Damages

Fees

and

Punitive

Defendants move the Court to dismiss Plaintiff’s

claims for attorney’s fees and punitive damages.

Having determined that Plaintiff failed to state a

claim under Title VII, the Court GRANTS Defendants’

motion to dismiss Plaintiff’s claim for attorney’s fees.

See 42 U.S.C. § 2000e-5(k) (allowing award of attorney’s

fees to the prevailing party). There being no award of

actual damages, Plaintiff is not entitled to punitive

damages. The Court therefore GRANTS Defendants’

motion to dismiss Plaintiff’s demand for punitive

damages.

App.39a

III. Motion for Summary Judgment

Defendant City of Valdosta Board of Education

or, in the alternative, the Valdosta City School District

(“School Board”) moves for summary judgment as to

Counts One, Four, and Five of Plaintiff’s Complaint.

Defendant argues Plaintiff’s Title VII claims are barred

by the doctrine of res judicata and that, consequently,

Plaintiff’s claims for attorney’s fee and punitive damages are subject to dismissal. The Court concurs and

GRANTS Defendant’s Motion for Summary Judgment. (Doc. 31).

A. Summary Judgment Standard

Summary judgment is appropriate when “the

pleadings, the discovery and disclosure materials on

file, and any affidavits show there is no genuine issue

as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). A genuine issue of material fact arises only

when “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party seeking summary judgment “always

bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those

portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of a material fact.” Celotex,

477 U.S. at 323 (internal quotation marks omitted). If

the movant meets this burden, the burden shifts to the

party opposing summary judgment to go beyond the

pleadings and present specific evidence showing that

App.40a

there is a genuine issue of material fact, or that the

movant is not entitled to judgment as a matter of law.

Id. at 324-26. This evidence must consist of more than

conclusory allegations. See Avirgan v. Hull, 932 F.2d

1572, 1577 (11th Cir. 1991). Summary judgment shall

be entered “against a party who fails to make a

showing sufficient to establish the existence of an

element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Celotex,

477 U.S. at 322.

B. Discussion

Res judicata is a “judicially made doctrine” whose

purpose is to give “finality to parties who have already

litigated a claim” and to promote judicial economy. In

re Atlanta Retail, Inc., 456 F.3d 1277, 1284 (11th Cir.

2006). “It is by now hornbook law that the doctrine of

res judicata bars the filing of claims which were raised

or could have been raised in an earlier proceeding.”

Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1375

(11th Cir. 2011). To invoke res judicata, the moving

party must establish that 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 and Annuity Ins. Co., 959

F.3d 1318, 1325 (11th Cir. 2020). “If even one of these

elements is missing, res judicata is inapplicable.”

Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th

Cir. 1992). “[T]he burden is on the party asserting res

judicata . . . to show that the later-filed suit is barred.”

In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th

Cir. 2001) (citation omitted).

App.41a

The parties here do not dispute the first two

elements. The Court must only determine whether

Defendant has established the third and fourth

elements.

1. Same Parties or their Privies

Plaintiff’s previous lawsuit named as Defendants

Warren Lee, Liz Shumphard, Tyra Howard, Debra

Bell, and Kelisa Brown, the five black School Board

members, in their individual capacities. In the present

action, Plaintiff asserts claims against the School

Board along with the same five Board Members “individually as [a]gents” of the School Board. Plaintiff argues,

and Defendants generally agree, that the relationship

between the School Board of and the Board Members

in their individual capacities does not automatically

establish privity. See Lozman v. City of Riviera Beach,

Fla., 713 F.3d 1066, 1075 n.7 (11th Cir. 2013) (“Generally, 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”); 18A Wright, Miller &

Cooper, Federal Practice and Procedure § 4458, at 567

& n.20 (2d ed. 2002) (“[A] judgment against a government or one government official does not bind a different

official in subsequent litigation that asserts a personal

liability against the official.”). However, Defendants

contend other circumstances create privity for purposes

of the res judicata analysis.

“Identity of parties concerns two sets of persons”:

(1) “those persons who were actual parties in the

original action”; or (2) those persons “who are or were

in privity with the parties to the original suit.”

N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th Cir.

App.42a

1990). Privity is defined as “a 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.” Id. (quoting Hart v.

Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1472 (11th

Cir. 1986)). Courts have identified a variety of

“substantive legal relationship[s]” that establish privity

for res judicata purposes. See Echeverria v. Bank of

Am., N.A., 632 F. App’x 1006, 1008 (11th Cir. 2015)

(citing Taylor v. Sturgell, 553 U.S. 880, 894 & n.8 (2008)).

For example, nonparty preclusion may exist when

there is an agency relationship; when the nonparty

was adequately represented by someone who was a

party to the suit; or when the nonparty assumed

control over the litigation in which the judgment was

issued. See Taylor, 553 U.S. at 2172-73 (listing six

categories of exceptions to the rule against nonparty

exclusion).

The School Board was not named as a party in

the prior litigation. Accordingly, in order for claim preclusion to apply, the School Board must demonstrate

privity existed with the five individual School Board

members. As mentioned, the School Board and School

Board members are not necessarily in privity since

Plaintiff’s original lawsuit asserted claims against the

Board members in their individual capacities. Defendant

argues res judicata still precludes Plaintiff’s claims

against the Board because the Board members served

as agents of the School Board. “A principal-agent

relationship is one kind of ‘substantive legal relationship’ that establishes privity for claim preclusion purposes.” Echeverria, 632 F. App’x at 1008 (quoting Taylor,

553 U.S. at 894 & n.8). “[I]t is settled that a judgment

exonerating a servant or agent from liability bars a

App.43a

subsequent suit on the same cause of action against

the master or principal based solely on respondeat

superior.” Citibank, N.A. v. Data Lease Fin. Corp., 904

F.2d 1498, 1502 (11th Cir. 1990) (quoting Lober v.

Moore, 417 F.2d 714, 717-18 (D.C. Cir. 1969)).

The Eleventh Circuit applied this principle in

Citibank to bar claims against the financial institution

based on a prior judgment in favor of seven individual

directors of the bank. Id. The Court explained that

privity between Citibank and the seven directors did

not exist solely because the opposing party made

identical claims against each of them:

When a person suffers injury as the result of

the concurrent or consecutive acts of two or

more persons, he has a claim against each of

them. . . . Accordingly, a judgment for or

against one obligor does not result in the

merger or bar of the claim that the injured

person may have against another obligor.

Id. (quoting Hart, 787 F.2d at 1473). Rather, privity

arose because the claims against Citibank were based

on the alleged wrongful acts of the bank’s agents and

not on any action by the bank itself. Id. The Circuit

Court approvingly noted the Fifth Circuit’s observation

that “[m]ost other federal circuits have concluded that

employer-employee or principal-agent relationships may

ground a claim preclusion defense, regardless which

party to the relationship was first sued.” Id. (quoting

Lubrizol Corp. v. Exxon Corp., 871 F.2d, 1279, 1288

(5th Cir. 1989)).

Both the previous lawsuit and this lawsuit involve

a single set of events: the decision of the School Board

not to renew Plaintiff’s employment contract. In both

App.44a

cases, Plaintiff alleges the five black School Board

members voted to remove Plaintiff as the head

football coach at Valdosta High School because he is

white. Plaintiff asserts no allegations specific to any

actions taken by the School Board. Instead, the premise

of both lawsuits is that the individual Defendants, as

agents of the School Board, acted on behalf of the

Board. Based on these circumstances, and the Eleventh

Circuit’s reasoning articulated in Citibank, the Court

is satisfied that the School Board has shown it is in

privity with the School Board members.

Moreover, the School Board’s interests were

adequately represented in the previous lawsuit. The

Supreme Court has “recognized an exception to the

general rule when, in certain limited circumstances, a

person, although not a party, has his interests adequately represented by someone with the same interests

who is a party.” Richards v. Jefferson Cnty., Ala., 517

U.S. 793, 798 (1996). Defendant argues, and Plaintiff

does not contest, that the basis for liability in the

previous lawsuit—the individual Defendants’ alleged

acts of racial discrimination against Plaintiff—is the

same basis alleged for the School Board’s liability in

this case. The Board consequently shares a “commonality of interests for purposes of defending against

[Plaintiff’s] claim.” See McDonald v. Hillsborough

Cnty. Sch. Bd., 821 F.2d 1563, 1566 (11th Cir. 1987).

Plaintiff also does not dispute Defendant’s assertion

that the School Board provided counsel for the individual

Defendants in the previous action and exerted substantial control over the defense. See Restatement

(Second) of Judgments § 39 (1982) (“A person who is

not a party to an action but who controls or substantially

participates in the control of the presentation on

App.45a

behalf of a party is bound by the determination of

issues decided as though he were a party.”). Both of

these factors support a finding of privity.

Having concluded that there is privity between

the School Board and the five individual School Board

members, the Court finds Defendant has met its

burden of establishing the third res judicata element.

2. Same Cause of Action

Plaintiff’s original lawsuit asserted claims against

the five individual School Board members for racial

discrimination in violation of § 1981 and § 1983. In

the present action, Plaintiff alleges the School Board

is liable under Title VII for allegedly terminating

Plaintiff’s employment contract based on his race.

Plaintiff does not dispute that the two actions arise

out of the same sequence of events. However, Plaintiff

argues that his Title VII claims could not have been

raised in the prior action because Plaintiff did not

name the School Board as a Defendant and because

Plaintiff had not yet exhausted his administrative

remedies with the EEOC and so could not have

included the Title VII claim.

Claims are part of the same “cause of action”

when they “arise out of the same transaction or series

of transactions.” Piper, 244 F.3d at 1297. The doctrine

of res judicata “is concerned with the substance, and

not the form, of the proceedings.” Trustmark Ins. Co.

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

Thus, “if a case arises out of the same nucleus of

operative fact, or is based upon the same factual

predicate, as a former action, th[en] the two cases are

really the same ‘claim’ or ‘cause of action’ for purposes

of res judicata.” Piper, 244 F.3d at 1297 (citation

App.46a

omitted). In resolving whether the facts arise out of

the same transaction or series of transactions, the

court must ask “whether the plaintiff could, or rather

should, have brought the second claim with the first

lawsuit.” Trustmark, 299 F.3d at 1270. Res judicata

acts as a bar “not only to the precise legal theory

presented in the previous litigation, but to all legal

theories and claims arising out of the same operative

nucleus of fact.” Manning, 953 F.2d at 1358-59 (quotation marks and citation omitted).

Plaintiff asserts he could not have raised his Title

VII claim in his previous lawsuit, so res judicata should

not now bar the claim. Plaintiff filed the original

lawsuit on April 23, 2020, the day before he filed his

Charge of Discrimination with the EEOC. According

to Plaintiff, because he had not yet received a right to

sue letter from the EEOC, he could not pursue his

Title VII claim in conjunction with his § 1981 and

§ 1983. Plaintiff is correct that his Title VII claim was

not yet ripe.2 However, the Eleventh Circuit in Jang

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

2000), plainly held that the lack of administrative

2 A plaintiff seeking relief under Title VII must first exhaust his

administrative remedies by filing a charge of discrimination with

the EEOC. See 42 U.S.C. § 2000e-5(b) and (f)(1). The purpose of

the exhaustion requirement is to allow the EEOC to “have the

first opportunity to investigate the alleged discriminatory

practices” so it can “perform its role in obtaining voluntary

compliance and promoting conciliation efforts.” Gregory v. Ga.

Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).

Where the EEOC either terminates its investigation or elects not

to file suit on behalf of the complaining party, the agency then

must send the plaintiff notice of her right to file suit. Once the

plaintiff receives this notice, he must file his lawsuit within

ninety days. See 42 U.S.C. § 2000e-5(f)(1).

App.47a

exhaustion does not impact the bar against claim

splitting.

The plaintiff in Jang filed suit against his former

employer under the Americans with Disabilities Act

(“ADA”) and the Florida Civil Rights Act, along with

a breach of contract claim. Id. at 1148. The district

court deemed the breach of contract claim as insufficient

as a matter of law and found the Florida Civil Rights

Act claim time barred. Id. The Court dismissed the

plaintiff’s ADA claim because the plaintiff had not

obtained a right to sue notice. Id. After receiving a

right to sue letter, the plaintiff filed a second lawsuit

raising the same ADA and Florida Civil Rights Act

claims. Id. The district court concluded res judicata

barred the plaintiff’s claim in light of the previous

judgment. Id. at 1148-49.

On appeal, the Eleventh Circuit rejected the

plaintiff’s argument that res judicata should not bar

his discrimination claim because he could not obtain

a right to sue letter before filing his first lawsuit. Id.

The Circuit Court relied on the reasoning of three

other circuit courts to explain that res judicata

prohibited claim splitting regardless of the exhaustion

issue. Id. (citing Heyliger v. State Unv. & Cmty. Coll.

Sys. of Tenn., 126 F.3d 849, 855-56 (6th Cir. 1997);

Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337,

339 (7th Cir. 1995); Woods v. Dunlop Tire Corp., 972

F.2d 36, 41 (2d Cir. 1992)). Where there is an administrative impediment to brining a Title VII claim, a

plaintiff may avoid claim preclusion “by filing [his]

other claims and seeking a stay to await the Title VII

administrative proceedings or by filing the claims and

then amending after obtaining the right to sue letter.”

Id. (citing Woods, 972, F.2d at 41).

App.48a

In support of its holding, the Jang Court also

cited to Rivers v. Barberton Bd. of Edu., 143, F.3d,

1029 (6th Cir. 1998), which the Court finds instructive.

In Rivers, the Sixth Circuit found for res judicata

purposes that the prior dismissal of a plaintiff’s

§§ 1981 and 1983 claims constituted a final decision

“not only as to those legal theories, but also to any

other legal theory under which that claim might have

been litigated,” including a Title VII claim. Id. at

1032. In the Court’s opinion, the absence of a right to

sue letter when filing an action for employment

discrimination is inconsequential to the principle that

a plaintiff could, and should, litigate Title VII claims

in conjunction with all other federal claims based on

the same facts. Id. To avoid subsequent preclusion of

a Title VII claim, a plaintiff simply needs to file suit

outlining his other claims, obtain the right to sue

letter, then seek to amend the complaint to include

the Title VII claim. Id. at 1033.

Plaintiff attempts to distinguish Jang and the

cases upon which Jang relies by pointing out that the

parties in each of those cases were identical, but here

they are not. Plaintiff misses the point. Defendant cites

to Jang to support its contention that the present and

prior actions involve the same cause of action, not to

address privity. Plaintiff’s argument is therefore

unpersuasive.

Eleventh Circuit precedent is clear. Plaintiff could,

and should, have raised his Title VII claim in the

previous lawsuit. Rather than wait for the EEOC to

investigate his discrimination claim and to issue a

right to sue letter so that he could pursue his Title VII

claims and his §§ 1981 and 1983 claim in a cohesive

action, Plaintiff instead chose to rush to the courthouse

App.49a

to seek immediate justice for his allegedly unlawful

termination. Even without the right to sue letter in

hand, Plaintiff could have filed his civil rights action

then requested a stay to await the letter and to amend

his complaint. He did not, electing instead to split his

claims.

There is no dispute that Plaintiff’s Title VII claim

arose from the same core facts as his §§ 1981 and 1983

claims. Having determined that Plaintiff’s argument

that he could not have asserted his Title VII claim in

the prior action is squarely foreclosed by Eleventh

Circuit present, the Court finds Defendant has satisfied

the fourth res judicata element.

The Court concludes that Defendant has adequately

met its burden of establishing each of the four res

judicata elements. The Court consequently finds

Plaintiff’s Title VII claim asserted against Defendant

is barred by the doctrine of res judicata and that

Defendant is entitled to judgment as a matter of law.

3. Attorney’s

Damages

Fees

and

Punitive

The Court finds Defendant is entitled to summary

judgment. Accordingly, there is no basis to award

Plaintiff either attorney’s fees or punitive damages.

Those claims are therefore DISMISSED.

IV. Conclusion

For the foregoing reasons, the Court GRANTS

Defendants’ Warren Lee, Liz Shumphard, Tyra Howard,

Debra Bell, and Kelisa Brown’s Motions to Dismiss.

(Docs. 7, 8, 11, 12, 13). The Court further GRANTS

Defendant the City of Valdosta Board of Education or,

App.50a

in the alternative, the Valdosta City School District’s

Motion for Summary Judgment. (Doc. 31).

SO ORDERED, this 31st day of August, 2022.

/s/ Hugh Lawson

Senior Judge

App.51a

ORDER DENYING PETITION FOR

REHEARING, U.S. COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

(OCTOBER 2, 2024)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

ALAN RODEMAKER,

Plaintiff-Appellant,

v.

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, 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.

________________________

No. 22-13300

App.52a

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.

PER CURIAM:

The Petition for Panel Rehearing filed by Appellant

Alan Rodemaker is DENIED.