Labor & Employment Law Daily Wrap Up, PROCEDURE—10th Cir.: Absence of right-to-sue letter does not defeat claim preclusion, (Apr 30, 2025)

By Todd Harrison, J.D.

An employee failed to raise Title VII claims in her initial lawsuit and the subsequent claims, arising from the same transaction, were precluded by final judgment in the initial litigation.

Reaffirming its holding in Wilkes v. Wyoming Department of Employment Division of Labor Standards, the Tenth Circuit upheld the dismissal of a fast food restaurant employee’s Title VII lawsuit based on the issue of claim preclusion. In this instance, the employee had failed to raise her Title VII claims in her initial lawsuit against her former employer. She contended that she had not done so because she was still awaiting a determination from the EEOC regarding her Title VII claims. However, the court noted that other procedural avenues were available to the employee, including requesting a right-to-sue letter 180 days after filing her EEOC charge or seeking a stay of the initial claim pending completion of the EEOC investigation (Watkins v. Genesh, Inc., dba Burger King, No. 24-3043 (10th Cir. Apr. 29, 2025)).

The employee, a Black woman, worked at a Burger King restaurant from August 2014 to August 2015. She alleged that her manager sexually harassed her on several occasions. In early 2016, she filed a charge with the EEOC alleging that the employer had discriminated and retaliated against her in violation of Title VII.

Second EEOC charge. While the employee was working at a Church’s Chicken in December 2018, her former employer allegedly admonished Church’s for hiring the employee. This led her to file a second EEOC charge against the former employer, concerning discrimination and retaliation that occurred between August 2015 when she was fired and December 2018 when the former employer allegedly contacted Church’s.

Lawsuit. In August 2019, the employee sued her former employer for a single count of race discrimination under Section 1981. At the time, both of her EEOC charges remained pending. To support her claim, the employee reiterated the factual allegations of her 2016 and 2019 EEOC charges. The district court granted the employer’s motion to dismiss.

Footnote. As part of the motion to dismiss, the court, in a footnote, stated that it would not delay ruling on the Section 1981 claim, and that once these proceedings had concluded, the employee could file her claims for sexual discrimination and/or harassment under Title VII.

Right-to-sue letters. In July 2021, the EEOC issued a right-to-sue letter concerning the 2019 allegations. The employee ultimately decided not to pursue litigation with regard to this charge and allowed the right-to-sue letter’s limitations period to expire. In April 2022, the EEOC also issued a right-to-sue letter concerning the 2016 allegations.

Lawsuit part two. Thereafter, in July 2022, the employee sued her former employer a second time, asserting claims for: (1) discrimination and retaliation under Section 1981; (2) violation of the Kansas Act Against Discrimination; (3) discrimination and hostile work environment under Title VII; and (4) retaliation under Title VII.

Once again moving to dismiss, the employer argued that the complaint was a recycled version of the earlier dismissed litigation and was subject to the doctrine of claim preclusion.

Acknowledging her Section 1981 claims were precluded, the employee agreed to withdraw them from her complaint. However, she maintained her Title VII claims were properly before the court, relying on the district court’s footnote in its motion to dismiss her previous claim. Ultimately, the district court dismissed her claim as untimely without reaching the issue of claim preclusion. This appeal followed.

Title VII claims. At the outset, the appellate court noted that because the employee had abandoned her Section 1981 claim before the district court and had declined to raise her state-law claim on appeal, this decision concerned only her Title VII claims.

Claims preserved? Turning to the arguments, the employee pointed to the Tenth Circuit’s decision in United States v. Osage Wind, LLC, 871 F.3d 1078 (10th Cir. 2017). There, the appellate court had held that “[b]ecause [Appellee] has the burden of proving its affirmative defense of claim preclusion, we will not bar [claimant] from asserting the instant claim unless [Appellee] can show that the claim reasonably could have been raised in the prior lawsuit.” According to the employee, her former employer failed to make that showing here.

The employee argued that she could not have brought her Title VII claims in the 2019 litigation because they “were not ripe because they were still pending with the EEOC.” Contending that the district court recognized as much, the employee asserted that it had specifically preserved her Title VII claims in its dismissal order.

Claims precluded? For its part, the employer maintained that the Title VII claims were precluded because they arose from the same facts previously litigated in the earlier racial discrimination lawsuit. In other words, according to the employer, the employee “merely repackages the same facts previously asserted under a different legal theory—this time as sex discrimination rather than race discrimination.”

Wilkes. The only claim preclusion elements at dispute in this action were the identity of the cause of action in both suits and the availability of the “full and fair opportunity to litigate” exception. The court concluded that its precedential decision in Wilkes v. Wyoming Department of Employment Division of Labor Standards, 314 F.3d 501 (10th Cir. 2002), controlled both points.

In Wilkes, an employee filed an EEOC charge against her employer alleging Title VII violations. Before a right-to-sue letter was issued, the employee filed suit asserting an Equal Pay Act claim. She accepted a settlement offer as to that claim. After the EEOC issued a right-to-sue letter, she sued her employer again, this time under Title VII. The district court found these claims were precluded and issued summary judgment in favor of the employer.

On appeal, the employee argued that “since she had not yet received a right-to-sue letter from the EEOC, she was statutorily prohibited from raising her Title VII claims in her first lawsuit and, therefore, should not be barred from raising those claims in a subsequent lawsuit.”

Affirming the district court’s grant of summary judgment, the appellate court found that both lawsuits arose from the same transaction—her employment relationship—such that both suits concerned an identical cause of action. Further the court held that the absence of a right-to-sue letter did not rescue the Title VII claims from preclusion, reasoning that the employee was not statutorily prohibited from raising these claims. She could have requested a right-to-sue letter 180 days after filing her EEOC charge or she could have sought a stay on her Equal Pay Act claim pending completion of the EEOC investigation, explained the court.

“…materially indistinguishable.” Here, the court found that the present case was “materially indistinguishable from Wilkes.” As in Wilkes, the first and second lawsuits arose from the same transaction—the employment relationship. And, as in Wilkes, both suits concerned an identical cause of action for claim preclusion purposes.

Wilkes, continued the court, further dictates that the employee cannot avail herself of the “full and fair opportunity to litigate” exception to the claim preclusion doctrine, noting that the lack of a right-to-sue letter did not prevent the litigant in Wilkes from pursuing her Title VII claims given the availability of procedural alternatives. The court could discern no reason why the employee could not have availed herself of the same or similar procedural alternatives in this instance.

Distinguishable? According to the employee, Wilkes is distinguishable from the present case based on: (1) the district court’s footnote; (2) the EEOC’s finding of cause with respect to the 2016 charge; (3) the satisfaction of judgment filed by the plaintiff in Wilkes; and (4) the COVID-19 pandemic. The court was unmoved.

None of these distinctions explained why the procedural alternatives available in Wilkes were not likewise available to the employee in the present case, said the court.

Implicit proposition. Further, continued the court, the employee’s claim preclusion theory leaned “heavily” on the district court’s footnote in its dismissal order. Implicit in this argument “is the extraordinary contention that a district court can prospectively strip a final judgment on the merits of preclusive effect with respect to certain future claims.” The employee proffered no doctrinal basis or legal authority for this implicit proposition, said the court, finding this argument “wholly lacking in merit.” Accordingly, the judgment of the district court was affirmed.

The case is No. 24-3043.

Judge: Holmes, J.

Attorneys: Aaron C. McKee (McKee Morgan) for Kenya Watkins. Charles D. Lee (Lee Schwalb) for Genesh, Inc., dba Burger King.

Companies: Genesh, Inc.; Burger King

Cases: Procedure Discharge Discrimination RaceDiscrimination SexDiscrimination SexualHarassment Retaliation ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews