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The full case caption appears at the end of this opinion. SEYMOUR, Chief Judge. Ana Gonzales brought this civil rights action claiming that defendantsdiscriminated and retaliated against her in connection with her employment by theLas Vegas Medical Center (LVMC). The district court granted summaryjudgment against Ms. Gonzales under the Eleventh Amendment and the doctrinesof res judicata and collateral estoppel. We affirm in part and reverse in part.
Ms. Gonzales brought an unsuccessful discrimination claim against LVMCbefore the New Mexico Human Rights Commission. Pursuant to the New MexicoHuman Rights Act, N.M. Stat. Ann. �� 28-1-10 et seq., she appealed denovo instate court, filing suit in October 1994 against LVMC but not against anyindividual employees. [FOOTNOTE 1] She alleged thatLVMC, through its employees,discriminated against her on the basis of national origin in violation of the stateact. She further alleged that LVMC retaliated against her for filing her HumanRights Commission claim. In June 1995, Ms. Gonzales filed the present action in federal court under42 U.S.C. �� 1981 and 1983. Describing the same acts and occurrences as allegedin the state court suit, she asserted that defendant LVMC employees, in theirindividual and official capacities, discriminated and retaliated against her,violating her federal equal protection, substantive due process, and FirstAmendment rights. The federal district court stayed this action pending theoutcome of the state court suit. A jury in state court subsequently returned averdict finding that LVMC did not discriminate but did retaliate against Ms.Gonzales. The jury awarded her $170,000 in compensatory damages, as well asattorney’s fees and costs. The defendant LVMC employees in the instant action then moved forsummary judgment. The district court granted it, holding the federal claimsbarred under the Eleventh Amendment and by res judicata and collateral estoppel. Ms. Gonzales appeals that summary judgment on the issues of preclusion. [FOOTNOTE 2]
We review a summary judgment decision de novo, applying the same legalstandards used by the district court under Fed.R.Civ.P. 56(c). See Pino v. Higgs,75 F.3d 1461,1463 (10th Cir. 1996). We review the record in the light mostfavorable to the non-moving party. See McIlravy v. Kerr McGee Corp., 119 F.3d876, 879 (10th Cir. 1997). A federal court is required to give a state court judgment the samepreclusive effect it would be given under the laws of the state in which it wasrendered. See 28 U.S.C. � 1738; Migra v. Board of Educ., 465U.S. 75 (1984). Inthe instant case, the governing law is that of New Mexico. We will address inturn the preclusive effect of Ms. Gonzales’ state discrimination and retaliationclaims on her subsequent federal claims. A. Discrimination Ms. Gonzales contends the district court erred in holding that herunsuccessful discrimination claim against LVMC in state court is binding on herwith respect to the individual defendants in her federal claim. She relies on Willner v. Budig, 848 F.2d 1032 (10th Cir. 1988), for the proposition that there isno preclusion in identical but separate actions when the defendant in one action isa vicariously liable entity, as here, and the defendant in the other action is aprimary obligor, so long as there is no privity between the defendants. [FOOTNOTE 3] Willnerwas not applying New Mexico law, however, as we are required to do here. Seeid. In the instant case, New Mexico law adopting the Restatment (Second) ofJudgments � 51 (1980) controls questions of preclusion involving vicariousliablility. See Ford v. New Mexico Dept. of Pub. Safety, 891 P.2d 546, 550 (N.M.Ct. App. 1994). Section 51 of the Restatement reads in relevant part: If two persons have a relationship such that one of them is vicariouslyresponsible for the conduct of the other, and an action is brought by theinjured person against one of them, the judgment in the action has thefollowing preclusive effects against the injured person in a subsequentaction against the other. (1) A judgment against the injured person that bars him fromreasserting hisclaim against the defendant in the first action extinguishes any claim he hasagainst the other person responsible for the conduct unless: (a) The claim asserted in the second action is based upon groundsthatcould not have been asserted against the defendant in the first action;or (b) The judgment in the first action was based on a defense thatwaspersonal to the defendant in the first action. Restatement (Second) of Judgments, � 51 (1980) (emphasis added). The Restatement thus recognizes that when an injured party initiatesseparate actions against a vicariously liable party and the primary obligor, and theinjured party is unsuccessful in one claim, she is thereafter precluded fromlitigating a second claim based on the same conduct. The comments to theRestatement note that, “[i]n an important sense, . . . there is only a single claim. The same loss is involved, usually the same measure of damages, and the same ornearly identical issues of fact and law.” Id. at � 51 cmt. b. As such, “if [theinjured party] is allowed to sue the second obligor after having lost an actionagainst the first,” rules of preclusion should “approximate those that govern whenthe same claim is successively asserted against a single defendant.” Id. The New Mexico Court of Appeals applied section 51(1) in Ford, 891P.2dat 550. The court enumerated four elements that need to be fulfilled to triggerpreclusion under the section: (1) liability under one of the claims is based onvicarious responsibility for the defendants in the other claim; (2) the firstjudgment would preclude a subsequent claim by plaintiff against the firstdefendants for the conduct alleged in the second claim; (3) the claims in thesecond action are claims that could have been asserted against the first defendantsin the first action; and (4) the first judgment was not based on a defense personalto the first defendants. Id. In the employment suit in Ford, the plaintiffsuedindividually-named defendants for retaliation and denial of due process in federalcourt. After losing in federal court, the plaintiff sued the employer for vicariousliability on the same conduct in state court under state law. The court found allfour elements satisfied and barred the subsequent state suit. Following the analysis in Ford, we apply the four requirements to determineif Ms. Gonzales’ second discrimination claim is precluded under section 51(1). The first requirement is indisputably satisfied. The state claim against LVMC wasbased on vicarious responsibility for the actions of LVMC’s employees,defendants in this action. The second element requires that we analyze the claims in the two suits asthough there were a single defendant. The question is whether New Mexico lawwould bar Ms. Gonzales’ second suit were LVMC the defendant in both actions. We look to New Mexico preclusion law, which says a final judgment against aplaintiff extinguishes all rights to remedies against the defendant with respect toall or any part of the transaction, or series of connected transactions, out of whichthe action arose. See Ford, 891 P.2d at 554. Here, the underlying transactionsand alleged wrongful conduct in Ms. Gonzales’ two claims are identical. The juryin the state action found LVMC did not discriminate against Ms. Gonzales. WereLVMC the defendant in the instant action, therefore, New Mexico would bar thissubsequent action as relitigating a claim previously resolved against Ms.Gonzales. The third element requires that the claims in the second action be claimsthat could have been asserted against the first defendant in the first action. Ms.Gonzales’ 42 U.S.C. �� 1981 and 1983 claims asserting discrimination andretaliation could have been brought against LVMC in state court. See Martinez v.California, 444 U.S. 277, 283 n.7 (1980); Daddow v. Carlsbad Mun. Sch. Dist.,898 P.2d 1235 (N.M. 1995) (section 1983 action); Carter v. City of Las Cruces,N.M., 915 P.2d 336, 338 (N.M. Ct. App. 1996) (“It is settled that state and federalcourts share concurrent jurisdiction over � 1983 claims for the denial of federalconstitutional rights.”) The fourth element requires that the judgment in the first action not bebased on a defense that was personal to the defendant in the first action. Nothingin the record indicates that LVMC’s defense was personal to itself in the firstaction. All four elements are thus satisfied. Accordingly, pursuant to section 51(1) as applied in New Mexico, the district court correctly held that Ms. Gonazales is precluded from litigatingclaims against the defendant LVMC employees in this action on conduct identicalto that alleged in her unsuccessful discrimination suit against LVMC. B. Retaliation Ms. Gonzales argues the district court erred in finding that her successfulretaliation claim against LVMC in state court barred her claim against theresponsible employees in federal court. The district court apparently reached thisconclusion based on its holding that the individual employees were in privity withLVMC and that all claims against the individual defendants should have beenbrought by Ms. Gonzales in the state court suit. See Aplt. App. at 102-04. On appeal, defendants assert they are in privity with LVMC, their employer,but they fail to cite a single New Mexico case so holding and we have found none. The general weight of authority appears to be that while government employeesare in privity with their employer in their official capacities, they are not in privityin their individual capacities. See, e.g., Gray v. Lacke, 885 F.2d 399, 404-06 (7thCir. 1989); Willner, 848 F.2d at 1034 n. 2; Headley v. Bacon, 828 F.2d1272,1279 (8th Cir. 1987); Roy v. City of Augusta, 712 F.2d 1517, 1522 (1st Cir.1983); Bills v. Hommer Consol. Sch. Dist., 959 F. Supp. 507, 514-15 (N.D. Ill.1997); Charles alan wright et al., 18 Federal Practice & Procedure �4458 at 506 & n.8, 508-09 & n.12 (1981 & Supp. 1999) (citing cases); J. Moore,18 Moore’s Federal Practice � 131.40(3)(e)(ii)(A) (3d ed. 1999). In asimilarly postured case, the court relied on this principle in holding that resjudicata did not apply to plaintiffs who sued a school principal in his individualcapacity after having successfully sued the school district. Bills, 959 F. Supp. at514-15. In any event, the New Mexico Supreme Court has made it plain that it findsguidance in the Restatement (Second) of Judgments when deciding preclusionissues, see, e.g., Kepler v. Slade, 896 P.2d 482, 486 (N.M. 1995); Three RiversLand Co. v. Maddoux, 652 P.2d 240, 245 (N.M. 1982), and the Restatement doesnot refer to “privity” in resolving preclusion questions. Having applied Section51(1) of the Restatement in Ford, we see no reason why the New Mexico courtswould not apply section 51(2) as well. Indeed, the Ford court recognized”Section 51 as accurately describing New Mexico law.” 891 P.2d at 550. Wetherefore turn to section 51(2). Section 51(2) provides: (2) A judgment in favor of the injured person isconclusiveupon him as to the amount of his damages, unless . . . (b) Different rules govern the measure of damages in the two actions. Restatement (Second) of Judgments, � 51(2) (1980) (emphasis added). Courtsapplying section 51(2) have held that a judgment in favor of the injured party in avicarious liability relationship does not preclude a second action againstnonparties except as to the amount of damages. See Kimmel v. Iowa Realty Co.,339 N.W.2d 374, 378 (Iowa 1983); see also Headley v. Bacon, 828 F.2d at1278; Day v. Davidson, 951 P.2d 378, 383 (Wyo. 1997). The Restatement clearly contemplates a complainant proceeding in splitactions against a vicariously responsible obligor and the primary obligor. SeeRestatement (Second) of Judgments � 49 (“A judgment against one personliable for a loss does not terminate a claim that the injured party may have againstanother person who may be liable therefore.”); [FOOTNOTE 4] see also id. � 50 (foreclosingdouble recovery); cf. Sanchez v. Clayton, 877 P.2d at 572 (noting thatSection 50sets forth a “sound principle” as applied to awards of compensatory damages).Section 51(2)(b) allows additional damages in the subsequent action as long as thefirst action is successful and the measure of damages in the second action isdifferent. In fact, the Restatement constructs a hypothetical directly on point: P is injured as a result of the deliberate act of S, who is M’semployee. P brings an action against M, the applicable law limitinghis recovery to compensatory damages. P obtains judgment for$10,000. In a subsequent action against S, P may obtain judgmentfor no more than $10,000 in compensatory damages but is notprecluded from recovering punitive damages. Id. at � 51 illus. 7. In Ms. Gonzales’ retaliation claim in state court, she won $170,000 incompensatory damages against LVMC, the vicariously responsible party. Applying the principles of the Restatement, we hold that Ms. Gonzales is notbarred from suing the employee defendants for retaliation, but she is precludedunder section 51(2) from seeking more than $170,000 in compensatory damages. Punitive damages are a different matter, however. The New Mexico HumanRights Act limited Ms. Gonzales’ recovery against LVMC to actual damageswhich are “‘synonymous with compensatory damages, and excludes punitivedamages.’” Behrmann v. Phototron Corp., 795 F.2d 1015, 1020 (N.M. 1990)(quoting 22 Am. Jur. 2d Damages � 3 (1988)). Because “[d]ifferent rulesgovern[ed] the measure of damages” in the first action, see Restatement(Second) Judgments � 51(2)(b), Ms. Gonzales is not barred from seekingpunitive damages in her retaliation claim against the employee defendants in thisaction. See Sanchez, 877 P.2d at 572 (punitive damages punish the tortfeasor forwrongdoing rather than compensate the victim for a loss and must be separatelydetermined against each defendant). In sum, although New Mexico law clearly precludes Ms. Gonzales’discrimination claim against the employee defendants in this action, there is nopolicy reason nor law in New Mexico to bar her retaliation claim against thedefendants for their individual liability since she prevailed on this claim in thefirst action against LVMC and also since different rules govern the measure ofdamages in this subsequent federal action. Consequently, we AFFIRM thedistrict court’s grant of summary judgment in favor of defendants on Ms.Gonzales’ federal claim of discrimination. We REVERSE the summaryjudgmenton Ms. Gonzales’ federal claim of retaliation and REMAND for furtherproceedings. [FOOTNOTE 5] :::FOOTNOTES::: FN1 In the original complaint, Ms. Gonzalesincluded John Does 1-10 asdefendants. After proposing and then withdrawing an amended complaint inFebruary 1995, Ms. Gonzales ultimately proposed and filed another amendedcomplaint that dropped defendants Does 1-10, Aplt. App. 79-82, leaving LVMCas sole defendant. FN2 Ms. Gonzales does not dispute on appealthat the Eleventh Amendmentbars her claim against defendants in their official capacities. See Ford v. NewMexico Dept. of Pub. Safety, 891 P.2d 546, 551 (N.M. Ct. App. 1994). FN3 We note that although Willnerheld that res judicata principles did notapply in that case, see 848 F.2d at 1034 n.2, it also held that collateral estoppelprecluded the plaintiff’s claims, id. at 1034. FN4 Defendants assert that Ms. Gonzales’reliance on � 49 of the Restatementis flawed because that section assumes the persons allegedly jointly responsiblefor the loss are not in privity. Aplee. Br. at 11. As we have indicated above, theRestatement does not refer to privity and, in any event, we have found no NewMexico case holding that individual employees are in privity with theirvicariously liable employers. Moreover, defendants cite no New Mexico casesupporting the proposition that a plaintiff is improperly splitting a cause of actionwhen she sues jointly and severally liable defendants in separate actions. Anillustration set out under Restatement � 49 is on point: A is injured as a result of the wrongful act of S, who is M’semployee. In A’s action against M, both the issues of liability andthe extent of A’s injuries are litigated. Judgment is for A for$10,000. A is not precluded from bringing an action against S butmay recover no more than $10,000 for the injuries involved. Restatement (Second) of Judgments � 49 illus. 1; see also id. � 24 cmt.e(“The rule against splitting . . . takes as its model a claim and action by a singleplaintiff against a single defendant”); Anaya v. City of Albuquerque, 924 P.2d735, 740 (N.M. App. 1996) (quoting � 24, cmt. e). FN5 We do not consider other issues raised bydefendants that were notaddressed by the district court. Those issues may be reasserted on remand.
ANA GONZALES, Plaintiff-Appellant v. PABLO HERNANDEZ, M.D.,THOMAS STURM, Ph.D.,ROBERT PULLINGS and JOHN/JANE DOES, I-V,individually and in their officialcapacities, Defendants-Appellees. No. 97-2380 United States Court of Appeals for the Tenth Circuit Appeal from the United States District Courtfor the District of New Mexico (D.C. No. CIV-95-657-M) May 6, 1999 James A. Burke, Santa Fe, New Mexico, for Plaintiff-Appellant. Walter G. Lombardi, RMD Legal Bureau, State of New Mexico, for Defendants-Appellees. Before SEYMOUR, Chief Judge, ANDERSON and BRISCOE, Circuit Judges.
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