United States Court of Appeals
For the First Circuit
No. 00-1931
GEORGE HAVERCOMBE,
Plaintiff, Appellant,
v.
DEPARTMENT OF EDUCATION OF
THE COMMONWEALTH OF PUERTO RICO;
VICTOR FAJARDO, SECRETARY,
in his Individual and Official Capacity,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin and Campbell, Senior Circuit Judges.
Nicholas Nogueras-Cartagena on brief for appellant.
Luis A. Núñez-Salgado, Jóse Fco. Benítez-Mier and O’Neill
& Borges on brief for appellees.
May 11, 2001
CAMPBELL, Senior Circuit Judge. Plaintiff-Appellant
George Havercombe appeals from the district court’s dismissal,
based upon res judicata, of his employment discrimination action
against the Department of Education for the Commonwealth of
Puerto Rico and Victor Fajardo, Education Secretary, in both his
official and individual capacities. For the reasons explained
below, we affirm.
Havercombe first sued these defendants on December 12,
1994, in the United States District Court for the District of
Puerto Rico alleging employment discrimination in violation of
the Age Discrimination in Employment Act (ADEA), Title VII of
the Civil Rights Act, and 42 U.S.C. § 1981. 1 In that action
(hereinafter Havercombe I), Havercombe alleged that from 1978 to
1997 he had been employed as a teacher and guidance counselor
for the Puerto Rico Department of Education. Beginning in early
1990, according to Havercombe, defendants engaged in a course of
discriminatory conduct, to wit, work place harassment and
1 The procedural history of this litigation makes case-
counting somewhat complicated. In 1995, Havercombe filed yet
another lawsuit against the same defendants alleging only age
discrimination under the ADEA. That case was consolidated with
his 1994 case on October 4, 1995. On March 21, 1997, Havercombe
moved to amend his complaint, dropping the § 1981 claim. It was
on that amended complaint that Havercombe went to trial and won
a jury verdict in his favor.
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failure to promote him because of his race, national origin and
age.2 On February 26, 1999, a jury found in Havercombe’s favor,
awarding him $1,000,000 in damages. That award was reduced by
the district court to $237,000 in April 1999.
On May 3, 1999, less than a month after the district
court entered final judgment in Havercombe I, Havercombe filed
the current action in the same district court against the same
defendants, once more alleging employment discrimination in
violation of the ADEA and Title VII, but also alleging that the
discrimination was in violation of 42 U.S.C. § 1981. 3 The
descriptive allegations in the complaint filed in the second
action (hereinafter Havercombe II) were materially the same as
those in Havercombe I.
On May 31, 2000, the district court granted defendants’
motion to dismiss for failure to state a claim based on
principles of res judicata. We review the district court’s
action de novo. See Apparel Art Intern., Inc. v. Amertex
Enterprises Ltd., 48 F.3d 576, 582 (1st Cir. 1995).
2
George Havercombe describes himself as black, as being in
his mid-sixties, and as having been born in Antigua.
3
As noted above, see supra note 1, Havercombe’s initial
complaint alleged a violation of 42 U.S.C. § 1981, but that
count was abandoned before trial.
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Under the doctrine of res judicata, “a final judgment
on the merits of an action precludes the parties or their
privies from relitigating issues that were or could have been
raised in that action.” Allen v. McCurry, 449 U.S. 90, 94
(1980). Under the federal-law standard,4 this requires “(1) a
final judgment on the merits in an earlier action; (2) an
identity of the cause of action in both the earlier and later
suits; and (3) an identity of parties or privies in the two
suits.” Kale v. Combined Ins. Co. of America, 924 F.2d 1161,
1166 (1st Cir. 1991). The parties do not dispute that prongs
(1) and (3) are met here. Their disagreement revolves around
prong (2).
Defendant contends that the allegations of employment
discrimination contained in the Havercombe II complaint are
essentially identical to those that were litigated, or that
could have been litigated, to a final judgment in Havercombe I.
Both cases state causes of action against the same defendants
under Title VII and the ADEA for race, national origin and age
discrimination, and both complaints state that the alleged
discrimination began in early 1990 and continued until the date
4 Because the judgment in the first action was rendered by
a federal court, the preclusive effect of that judgment in the
instant action is governed by federal res judicata principles.
See Johnson v. SCA Disposal Servs., Inc., 931 F.2d 970, 974 (1st
Cir. 1991).
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of the complaint, viz, March 21, 1997 (Havercombe I) and May 3,
1999 (Havercombe II). To be sure, Havercombe II alleged that
this same conduct went on for two more years than in Havercombe
I. And Havercombe’s July 31, 1998 EEOC administrative complaint
charging discrimination occurring in the period 1997-1998 forms
part of Havercombe II but not Havercombe I. But nothing in
particular -- no special incident different from what had
already occurred in the past -- is identified as having taken
place after 1997.
Defendant argues that neither the addition of the §
1981 claim nor the inclusion of the later EEOC administrative
complaint (for conduct in 1997-1998) suffices to show that
Havercombe II contains a cause of action that is distinct from
the cause pleaded in Havercombe I. We agree.
We start with the unsurprising proposition that,
insofar as Havercombe II’s complaint alleges incidents of
discrimination dating from 1990 to 1997 (the very same dates
covered by the amended complaint in Havercombe I), Havercombe II
is plainly precluded by the first lawsuit. Cloaking these same
allegations in a new legal theory by adding a cause of action
under 42 U.S.C. § 1981 cannot rescue Havercombe II from the
judgment in Havercombe I for the period 1990 to 1997. As this
court has said,
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[a] single cause of action can manifest
itself in an outpouring of different claims,
based variously on federal statutes, state
statutes, and the common law. ... [A]s long
as the new complaint grows out of the same
transaction or series of connected
transactions as the old complaint, the
causes of action are considered to be
identical for res judicata purposes.
Kale, 924 F.2d at 1166 (quotation marks and citations omitted).
Section 1981, which forbids discrimination in the making and
enforcement of contracts, see 42 U.S.C. § 1981, is another way
of presenting the same race discrimination plaintiff suffered
(and for which the jury in Havercombe I found defendants liable)
in the context of a different legal theory. Having brought and
prevailed upon his Title VII claim in Havercombe I, in which he
alleged racial discrimination of the type that would be covered
by § 1981, such as failure to promote, plaintiff cannot now go
forward with another lawsuit based on the same underlying facts
but premised on a different, and in this case narrower, federal
anti-discrimination statute. See Patterson v. McLean Credit
Union, 491 U.S. 164, 179-80 (1989) (distinguishing section 1981
from Title VII and calling the latter the one with “the more
expansive reach . . . mak[ing] it unlawful for an employer to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,”
whereas section 1981 “covers only conduct at the initial
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formation of the [employment] contract and conduct which impairs
the right to enforce [employment] contract obligations through
legal process“). Plaintiff’s § 1981 claim, in so far as it is
based on incidents of race discrimination between 1990 and 1997,
could have been brought in Havercombe I but was not. As such,
it is res judicata by virtue of the final judgment in Havercombe
I. As the district court correctly held, “[t]he addition of the
Section 1981 claim does not breath life into this action.”
The harder question is whether the alleged subsequent
discrimination that continued from 1997 until 1999 (partially
covered by a later EEOC administrative complaint filed in 1998)
can properly be considered to be part of the same transaction or
series of connected transactions adjudicated to a final judgment
in Havercombe I. The verdict in Havercombe I was returned on
February 26, 1999, and a final judgment was entered in April
1999 after defendant’s motion for remittitur was granted. The
trial in Havercombe I, however, encompassed only alleged
discriminatory conduct during the period 1990-1997.
To decide this question we look first at this circuit’s
approach to res judicata, which follows the Restatement (Second)
of Judgments. See Manego v. Orleans Board of Trade, 773 F.2d 1,
5 (1st Cir. 1985) cert. denied, 475 U.S. 1084, (1986) (adopting
the "transactional" definition of res judicata of the
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Restatement (Second) of Judgments § 24). Section 24 of the
Restatement (Second) of Judgment provides:
(1) When a valid and final judgment rendered
in an action extinguishes the plaintiff's
claim pursuant to the rules of merger or bar
..., the claim extinguished includes all
rights of the plaintiff to remedies against
the defendant with respect to all or any
part of the transaction, or series of
connected transactions, out of which the
action arose.
(2) What factual grouping constitutes a
"transaction", and what groupings constitute
a "series", are to be determined
pragmatically, giving weight to such
considerations as whether the facts are
related in time, space, origin, or
motivation, whether they form a convenient
trial unit, and whether their treatment as a
unit conforms to the parties' expectations
or business understanding or usage.
Restatement (Second) of Judgments § 24 (emphasis added). The
Restatement explains this pragmatic approach as an outgrowth of
the federal rules’ “considerable freedom of amendment and [the
system’s] . . . willing[ness] to tolerate changes of direction
in the course of litigation.” Id., cmt. a. Applying the
Restatement considerations to this case’s factual and procedural
posture, we conclude that Havercombe I extinguished not only the
claims for the period 1990-1997 alleged in Havercombe II but
those continuing through 1999 as well.
In so deciding, we look first to the amended complaint
in Havercombe II on which the plaintiff relies in order to
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distinguish this second action from the first. The Havercombe
II complaint alleges that “Defendant have [sic] subjected
plaintiff to a discriminatory and offensive environment in the
workplace, which has entailed, inter alia, offensive racial
slurs, denial of lunch privileges, assignment to unhealthy and
hazardous working areas and unfair adverse recommendations.”
The complaint further alleges that “[t]he racial discrimination
practices by defendant Victor Fajardo in refusing to . . .
promote plaintiff and in issuing adverse assignment decisions
has [sic] deprived plaintiff of the equal benefit of the law .
. . ” and that “Defendants have engaged in discriminatory
practices against plaintiff regarding the terms and conditions
of his employment on the basis of age, including but not limited
to engaging in a pattern and practice of harassment and
humiliation. . . .”
The wording of the allegations contained in the
Havercombe II complaint is materially identical to that in the
Havercombe I amended complaint (except for the mention of an
additional cause of action under 42 U.S.C. § 1981, supra).5 The
5
As an example, paragraph 22 of the amended complaint filed
in Havercombe I, alleges that “Defendants have subjected
plaintiff to a discriminatory and offensive environment in the
workplace, which has entailed, inter alia, offensive racial
slurs, denial of lunch privileges, assignment to unhealthy and
hazardous working areas and unfair adverse recommendations....”
Exactly the same language appears in paragraph 12 of the
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dates alleged in Havercombe II as the beginning of the
defendants’ discriminatory acts are 1990 and 1991, as they were
in Havercombe I. We note also that Havercombe initially cited
in Havercombe II his first EEOC right-to-sue letter (September
16, 1994) on which he based Havercombe I. By amendment,
however, he replaced this reference with a later EEOC letter
covering allegations of discrimination in 1997-1998 after
defendants pointed to a statute of limitations problem should
the second action be based on the earlier date.6
Plaintiff does not specifically allege in his amended
Havercombe II complaint that any new facts occurred after 1997
indicative of additional causes of action under Title VII and
the ADEA distinct from those pleaded and adjudicated in
Havercombe I. On the contrary, the language in the Havercombe
II complaint is general and broad, covering the period
commencing in 1990-91, and indicating that all acts within that
entire period, including those after 1997, were part of the same
pattern of discrimination – a pattern previously alleged in
complaint in Havercombe II.
6On January 14, 2000, eight months after initially filing
suit in Havercombe II, plaintiff moved to amend his complaint to
replace the date of September 16, 1994 with the date of February
8, 1999, the date on which he received the second EEOC right-to-
sue letter on which he bases Havercombe II.
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Havercombe I. No new and distinctive incidents of
discrimination were alleged in Havercombe II.
Although Havercombe’s 1998 EEOC administrative
complaint, filed with the district court in support of his
complaint in Havercombe II, charges discriminatory conduct
during 1997-98 – after the period covered by the Havercombe I
amended complaint – these charges simply repeat similar broadly-
worded charges made in Havercombe’s earlier EEOC complaints and
in Havercombe I itself. 7 No identifying dates or otherwise
specific incidents are set out. In the 1998 EEOC complaint,
Havercombe reasserts earlier allegations that he was denied
leave time granted to other employees and was placed in
inadequate and unsanitary work spaces. These broadly-described
charges do not identify transactions that are sufficiently
separate from the earlier ones to constitute a new cause of
action arising in the 1997-1999 period even if the allegations
are generously read to cover occurrences extending into that
period.
7 Even though the allegations contained in the July 31, 1998
EEOC administrative complaint were not specifically imported
into the Havercombe II complaint, we will include them in our
analysis, assuming, without deciding, that they are matters
that may fairly be incorporated into the complaint. See Beddal
v. State St. Bank & Trust Co., 137 F.3d 12, 16-17 (1st Cir.
1998).
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Key in both cases was the employment relationship
between Havercombe and the defendants and the propriety of the
defendants’ motivation for adverse employment decisions that
Havercombe alleges he endured. Spread out over a long period of
time, from 1990 to 1999, all of these acts were allegedly
committed because of racial and age-related animus. It is, in
fact, Havercombe’s contention that all of these events were
directly related to each other in terms of motivation and common
purpose, one factor the Restatement instructs us to consider
when defining “transaction” or “series of connected
transactions.” See Restatement (Second) of Judgments § 24(2).
See also King v. Union Oil Co. of California, 117 F.3d 443, 446-
47 (10th Cir. 1997) (holding that employer’s decision to
terminate employee and its later decision to refuse to pay
severance benefits are part of a series of connected
transactions because they were both alleged to be based on
improper racial and age-related animus, thus giving rise to only
one cause of action, even though the factual events giving rise
to each are separate and the first action provided the basis for
the latter).
A further pervasive allegation in both Havercombe I and
Havercombe II is that of a hostile work environment. Such a
claim does not ordinarily turn on single acts but on an
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aggregation of hostile acts extending over a period of time.
See O’Rourke v. City of Providence, 235 F.3d 713, 732 (1st Cir.
2001) (stating that “a plaintiff usually will not have a viable
claim of hostile work environment from single acts that are
isolated or sporadic or not themselves severe enough to alter
the work environment and create an abusive work environment”).
Incidents occurring in 1997-1999 would have been additional
evidence in Havercombe I of the unlawful workplace environment;
they would have easily fit the “litigative unit” of the first
trial. Restatement (Second) of Judgments § 24, cmt. a.
Havercombe’s allegations in his July 31, 1998 EEOC complaint --
allegations such as the continual humiliation he suffered “on a
day by [day] basis in all forms,” and his sub-standard work
conditions -- would have all been examples of, and could have
been used to prove, the pattern of discrimination Havercombe
alleged he suffered and that the jury apparently found to be
true in Havercom b e I. The additional incidents during that
period could also have been the subject of the testimony and
other factual proffers in Havercombe I as, among other things,
proof of the defendant’s on-going practice of unlawful
discrimination. Such an overlap in evidentiary proffers is,
according to the Restatement, another good reason for the
“second action . . . [to] be held precluded.” Id., cmt. b.
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We recognize that violations of the type here alleged
are sometimes considered to be “serial” (nomenclature rather
similar to the Restatement’s “series of . . . transactions”
language). Serial violations may be “composed of a number of
discriminatory acts emanating from the same discriminatory
animus, each act constituting a separate wrong actionable under
Title VII,” Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990)
(emphasis added). But the Havercombe II pleadings are
insufficient to indicate that a separate actionable wrong
occurred during the 1997-1999 period.
As we have noted, Havercombe’s pleadings do little to
identify discrete, separable wrongs. Rather, they suggest a
claim of a pattern and practice of improper acts adding up to a
single claim of workplace harassment. See O’Rourke, 235 F.3d
at 732. The serial violations doctrine was developed as an
equitable exception to otherwise strict statute of limitations
requirements for civil rights claims. Often times (and for the
reasons explained in O’Rourke, see id.), a plaintiff does not
know that, for several years on a continuous basis, she has been
the victim of unlawful discrimination until after she missed the
filing deadline. The concerns that animate the serial violations
doctrine do not apply in the present situation pertaining to res
judicata. Havercombe does not contend that he is the victim of
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discrete acts of discrimination, each actionable under Title VII
or the ADEA. On the contrary, he alleges both in Havercombe I
and Havercombe II that he has been harassed and subject to on-
going humiliation on the basis of his race and age while at
work.8 He also does not contend that during and immediately
before the Havercombe I trial in 1999 he lacked knowledge of any
incidents that occurred in 1997 and 1998. Rather, six months
before the jury began deliberating in Havercombe I, he filed a
claim with the EEOC alleging discrimination based on, among
other things, such additional incidents.
Had Havercombe amended his complaint in late 1998 to
include these incidents, they might have increased his eventual
damages award. In fact, while stating that these incidents are
more of the same of the on-going harassment he suffered, which
did not stop with the filing of his first lawsuit, Havercombe
acknowledges that his “objective [in bringing Havercombe II] is
to receive adequate economic compensation for damages.” By
this, Havercombe suggests that instead of bringing a new cause
8 Although in both cases Havercombe mentions the
defendants’ alleged failure to promote him, in Havercombe II,
plaintiff fails to specify a date or time of that alleged harm,
and therefore we have no basis on which to reasonably determine
whether this is a fresh act of discrimination, not alleged and
proved in Havercombe I, or a repetition of prior claims already
adjudicated. Here, where Havercombe gives no details of this
asserted slight, we have no basis for viewing it as other than
previously adjudicated.
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of action, he is asking to be further reimbursed over and above
the jury award he already received for suffering constant and
on-going harassment. Had he wished to augment his damages
award, he should have (and could have) provided more evidence of
harassment during the trial of Havercombe I in 1999, including
the harassment he now alleges was on-going throughout that
earlier proceeding.
Havercombe contends that his allegations of
discrimination between 1997 and 1999 could not have been
brought, by amendment or otherwise, in Havercombe I because not
until February 8, 1999 -- shortly before the trial began and
only three weeks before the jury verdict in Havercombe I -- did
he receive from the EEOC a right-to-sue letter based on the
later conduct. Assuming that Havercombe needed a new EEOC
letter in these circumstances -- a matter we need not decide --
the lack of a right-to-sue letter would not have prevented
plaintiff from notifying the court of his allegations of
defendants’ continuing violations of federal anti-discrimination
laws (against which the defendants were at that time engaged in
defending) and, if need be, asking for a stay until the EEOC
issued him the letter. See Hermann v. Cencom Cable Assoc. Inc.,
999 F.2d 223, 225 (7th Cir. 1993). At the same time, the
plaintiff could have requested of the EEOC an acceleration of
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the administrative process. See id. And when, several weeks
before trial, plaintiff did receive the right-to-sue letter,
plaintiff could have moved to amend his original complaint to
include those allegations in order to put them before the jury
and argue for higher damages. See Boateng v. Interamerican
University, Inc., 219 F.3d 56, 62 (1st Cir. 2000); Hermann, 999
F.2d at 225. Given the similarity of the alleged discrimination
during 1997-1999 with that allegedly occurring in the early
1990s (at least as the conduct is described in the two
complaints), and given that the general rule in the federal
courts is to liberally permit amendments where justice so
requires, his failure to so amend has foreclosed him from
bringing them at all. See Boateng, 219 F.3d at 62 (agreeing
with other circuits that have held that Title VII claims are
precluded by a prior adjudication even though a right-to-sue
letter had not been obtained until after final judgment had
entered in first action and concluding that “there is no
principled basis for reaching a different result where, as here,
the plaintiff obtained permission to sue from the EEOC while his
first suit was still pending”). Thus, we find the plaintiff’s
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objections relating to timing of the February 8, 1999 EEOC
right-to-sue letter are unavailing.9
This would be a different case had the complaint in
Havercombe II been pleaded so as to set out fresh causes of
action in the post-1997 period. However, we think it was
plaintiff’s burden to make allegations from which the existence
of a new cause of action could be gleaned. The choice of
language and structure of his second complaint was his to make.
See, e.g., Burnett v. Grattan, 468 U.S. 42, 50-51 n.13 (1984)
(stating that an injured person “must look ahead to the
responsibilities that immediately follow filing of a
complaint . . . [and] be prepared to withstand various
responses, such as a motion to dismiss,” and noting that
“[a]lthough the pleading and amendment of pleadings rules in
federal court are to be liberally construed, the administration
9 For the same reasons, this case does not fall into the
“exceptions to the general rule concerning claim-splitting” as
provided by the Restatement (Second) of Judgments § 26. See,
e.g., Restatement (Second) of Judgments § 26, cmt. c (“where
formal barriers existed against full presentation of claim in
first action” such as where subject matter jurisdiction is
limited in the court of the first action); id., cmt. j (where
the defendant has committed fraud on the plaintiff by concealing
evidence “of a part or phase of claim that the plaintiff failed
to include in an earlier action.”). See also Marrapese v. State
of Rhode Island, 749 F.3d 934, 940 (1st Cir. 1985)(stating that
if the information on which the second action is based was not
reasonably discoverable during the pendency of the first action,
res judicata will not apply).
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of justice is not well served by the filing of premature,
hastily drawn complaints”).
The rule is well-established, of course, that we must
take as true all well-pleaded facts and draw all reasonable
inferences favorable to the complainant. See Papasan v. Allain,
478 U.S. 265, 283 (1986); Correa-Martinez v. Arrillaga-Belendez,
903 F.2d 49, 52 (1st Cir. 1990). But even under this forgiving
standard, Havercombe’s complaint does not survive scrutiny.
Alerted to the possibility that Havercombe was trying to
relitigate claims already adjudicated in his favor by the
similarities between the complaint in Havercombe II and the
complaint in Havercombe I, see supra note 5 and accompanying
text, we looked further to the summary of the evidence presented
during the Havercombe I trial (as provided by the district
court’s Memorandum and Opinion denying defendant’s motion for
judgment as a matter of law). When comparing this summary to
the universe of reasonable inferences that can be drawn from the
factual allegations contained in the Havercombe II complaint, we
cannot conclude that Havercombe II covers any new ground. There
are no factual allegations that can be reasonably drawn from the
complaint in Havercombe II from which the district court could
conclude that the claims therein give rise to a different
“transaction” or “series of transactions” than those litigated
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to a jury verdict in Havercombe I. See, e.g., Isaac v.
Schwartz, 706 F.2d 15, 17-18 (1st Cir. 1983) (affirming a
judgment of dismissal on the basis of res judicata after
determining that the “new complaint grows out of the same
’transaction or series of connected transactions’ as the old
complaint”).
As a last-ditch effort, plaintiff claims that the
equitable exception to the res judicata doctrine should apply
here, i.e., that equity demands the suspension of the doctrine
in this case. The Supreme Court has, however, counseled us to
adhere to traditional principles of res judicata and not to make
any “ad hoc determination of the equities in a particular case.”
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401
(1981). See also Johnson v. SCA Disposal Servs., Inc., 931 F.2d
970, 977 (1st Cir. 1991) (citing Moitie for the proposition that
“we cannot relax the principles of claim preclusion even if we
find that the equities cry out for us to do so”). In this case,
Havercombe has already won a jury verdict in his favor, albeit
receiving a remitted award. Had he been suffering on-going
discrimination of the type he was in the process of actively
litigating during the pendency of the first trial, he has only
himself to blame for not bringing it to the court’s attention
and amending his complaint accordingly. The trial commenced on
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February 9, 1999, a time by which all of the discrimination
alleged in Havercombe II had occurred.
Because we affirm the district court’s dismissal of
plaintiff’s complaint on the basis of res judicata, we do not
reach the other bases for dismissal raised by defendants in
their appeal.
Affirmed.
So ordered. Costs to appellants.
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