Common Problems: Common question of law requires the same legal rule or standard. "Discrimination" is not a question of law. And Title VII is a different legal rule than § 1981; the overlap comes from the shared legal standard.
You did not have the facts for issue preclusion, because you never were told what happened in the (hypothetical) first litigation other than that it ended and Rodemaker might be unhappy. Plus, issue preclusion does not bar the later action; it just affects how it will be litigated. Option 2 triggered claim preclusion, which applies regardless of how the first action ended.
Plaintiff can pursue Option # 1; he cannot pursue Option # 2.
Option # 1:
Option # 1 is permissible under FRCP 20(a)(2), governing joinder of persons as defendants in one action.
Persons may be joined as defendants in one action when rights to relief asserted against them arising out of the “same transaction, occurrence, or series of transactions or occurrences.” FRCP 20(a)(2)(A). Courts define same transaction or occurrence through the “Logical Relationship” Test--whether the essential facts giving rise to claims against each defendant are so logically connected that considerations of judicial economy and fairness dictate that the issues be resolved in one lawsuit. Jones. This requires a sufficient logical or rational connection between the real-world events giving rise to claims against each defendant, such that it is reasonable, fair, and efficient to resolve them as a single litigation unit. If FRCP 20(a)(2)(A) is satisfied, “any question of law or fact common to all plaintiffs will arise in the action.” FRCP 20(a)(2)(B). FRCP 20(a)(2) uses “and” between (A) and (B), meaning joinder requires the plaintiff satisfy both prongs.
The Board can properly be joined in this action alongside the individuals. FRCP 20(a)(2)(A) is satisfied because the claims against the Board arise out of Rodemaker’s employment and the decision not to renew his contract. (¶¶ 17-24, 29-32). Plaintiff pursues different legal rights and theories against the different defendants--§ 1981 and Fourteenth Amendment against the individuals, Title VII against the Board. But all arise from the events regarding his employment and the non-renewal of his contract. FRCP 20(a)(2)(B) is satisfied. All claims allege race discrimination and thus turn on the common fact of the role that Rodemaker’s race played in the employment decision and whether his contract was not renewed because he is white. There also is a common question of law. Although Rodemaker asserts different claims under different sources of law against different parties, all apply the same legal standard—plaintiff must prove that race was a but-for cause for the adverse treatment and that he would not have been fired but-for his race. Mt. Healthy Sch. v. Doyle. The court must resolve that legal question to decide the § 1981 and constitutional claims against the individuals and the Title VII claim against the Board.
Option # 2:
Option # 2 is impermissible because the separate lawsuit against the Board, if filed after completion of an action against the individuals, would be barred by claim preclusion (res judicata). If plaintiff does not include the Title VII claim in this action, he cannot bring it in a later action.
Claim preclusion is a common law doctrine that precludes parties from relitigating the same claim or cause of action in separate or successive lawsuits. Claim preclusion contains four elements: 1) the first case must have proceeded to a final judgment on the merits; 2) the first case and the second case must involve the same parties or those in privity with parties; 3) the claims asserted in the second action were or could have been brought in the first action; and 4) the same claims or causes of action are asserted in the second action as the first action. Courts define “same claim” by a transactional framing, asking the same question it asks as to joinder of parties—whether the claims in the second action arise out of the same transaction or occurrence as the claims in the first action. As with joinder, courts employ the logical relationship test--whether the essential facts giving rise to claims against each defendant are so logically connected that considerations of judicial economy and fairness dictate that the issues be resolved in one lawsuit. Jones.
Under Option # 2, plaintiff would litigate the first action (against the individual members) to a final judgment on the merits, pursuing a second suit only if dissatisfied with that result.
The Title VII action could have been brought in the first action because joinder of the Board and the individual defendants in one action would have been proper under FRCP 20(a)(2), for the reasons described above. And the Title VII action would qualify as the same claim as the § 1981 and Fourteenth Amendment claims, also for the reasons described above—all claims arise out of Rodemaker’s employment and the non-renewal of his contract.
The open question is whether claim preclusion applies, since the Board is not party to the first action. Ordinarily, claim preclusion does not apply to non-parties, but only to second actions between the same parties. FRCP 20(a) is permissive—persons “may be joined” in one action as defendants; plaintiffs can choose which defendants to pursue in which lawsuit. The exception arises where the parties to the second action are in privity with the parties to the first action. Privity means that the parties are, in essence, the same. Thus, although the Board was not a named party in the first action, the court will treat it as if it were. Although courts have not defined privity, they offer examples. Privity exists where the party to one action represents the interests of a party to the second action, such as a trustee suing on behalf of the trust beneficiaries. Glannon. Privity also exists where the party to one action controls and dictates the actions of the party to the separate action.
The Board is in privity with the five individuals on that control theory. The Board acts on the votes of a majority of its members—five out of nine. (¶ 10). The five individual defendants constitute a working majority of the Board, controlling and dictating its actions; they acted together to decline to renew Rodemaker’s contract. (¶ 20). That is, the Board (not a party to the first action) took the challenged action—not renewing Rodemaker’s contract—because the five individuals (parties to the first action) voted not to renew Rodemaker’s contract. This control makes the Board and individuals the same party, warranting preclusion.
