Kahler v. Wal-Mart Stores ( 2023 )

Appellate Case: 22-1136 Document: 010110791667 Date Filed: 01/03/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 3, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
MARY LEE KAHLER,
Plaintiff - Appellant,
v. No. 22-1136
(D.C. No. 1:20-CV-01536-WJM-STV)
WALMART INC., (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, BALDOCK, and MCHUGH, Circuit Judges.
_________________________________
Mary Lee Kahler, proceeding pro se, appeals the district court’s dismissal of her
complaint against her former employer, Walmart Inc.; its denial of her motion for leave
to amend the complaint; and its denial of her motion for reconsideration of that
dismissal and denial. Ms. Kahler alleges that Walmart violated her rights under several
federal civil-rights statutes through actions including retaliation, wrongful termination,
and failure to rehire. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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district court’s orders. Ms. Kahler’s only claims not barred by res judicata fail to state
a cause of action. And she has waived her challenges to the denials of her motion for
leave to amend and her motion for reconsideration.
I. BACKGROUND
In this account of the relevant facts, we accept all of Ms. Kahler’s well-pleaded
allegations as true and view them in the light most favorable to her. See Tavernaro v.
Pioneer Credit Recovery, Inc., 43 F.4th 1062, 1066 (10th Cir. 2022). Also, we take
judicial notice of the filings in a 2018 lawsuit (Kahler I) which involved the same
employment relationship underlying this litigation, but only “to show their contents,
not to prove the truth of matters asserted therein.” Tal v. Hogan, 453 F.3d 1244, 1264
n.24 (10th Cir. 2006) (internal quotation marks omitted).
From May 14, 2014, until April 3, 2016, Ms. Kahler was a fitting-room and sales
associate at a Walmart store located in La Junta, Colorado. Between February 2015
and February 2016, she submitted three requests for leave under the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the FMLA), all of which were
denied. Afterwards, whenever Ms. Kahler was absent from work or tardy between
January 30 and April 2, 2016, Walmart recorded it as “unauthorized”; in contrast, all
instances of absence or tardiness before January 30 were recorded as “authorized.”
Walmart ultimately fired Ms. Kahler based on the recorded absences and tardiness.
Although she reapplied numerous times—and even got an interview by visiting a job
fair—Ms. Kahler did not receive another job offer from Walmart.
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On February 24, 2017, Ms. Kahler filed with the EEOC a charge of
discrimination based on age and disability. After receiving her right-to-sue letter from
the EEOC, she filed her initial complaint in Kahler I on December 10, 2018. She
alleged that Walmart and Jonna Leggitt, manager of the La Junta store, had violated
her rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the
ADA), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.
(the ADEA), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(Title VII). Her theories of liability included wrongful discharge, failure to hire, failure
to promote, and retaliation. On August 20, 2019, the district court granted Walmart
and Ms. Leggitt’s joint motion to dismiss. On January 10, 2020, the district court
denied as futile Ms. Kahler’s motion (which she had timely filed on November 15,
2019) for leave to file an amended complaint against Walmart, entered final judgment,
terminated the case, and granted costs to the defendants, who shared legal counsel.
On January 13, 2020, one of Walmart’s attorneys sent an email to Ms. Kahler
offering not to pursue the court-awarded costs if she signed a settlement agreement.
On January 16 the attorney elaborated, saying: “Among other things, you would be
required to agree to dismiss your lawsuit, release/waive your claims, acknowledge that
you’ve been padi [sic] all wages due to you, not disparage Walmart, and not reapply
for employment. These are standard terms in cases like this.” Aplt. App. at 12. 1
1
Ms. Kahler’s complaint quotes only from the second email that counsel sent
her, which she describes as retaliation. But her reply brief on appeal puts that email in
context by quoting the first email as well.
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Ms. Kahler did not agree to these proposed terms. Instead, on February 21, 2020,
she submitted a new complaint to the EEOC, claiming that the January 16 email from
Walmart’s counsel was an act of retaliation by Walmart. After receiving her right-to-
sue letter from the EEOC, she filed her complaint in this case on May 29, 2020. The
new complaint alleged that the same conduct underlying her first suit violated the
FMLA (as well as the ADA, the ADEA, and Title VII). Also, it described the January
16 email from Walmart’s counsel as “retaliation for filing the original EEOC complaint
[in February 2017].” Id.
On August 17, 2021, the district court dismissed this lawsuit with prejudice on
claim-preclusion grounds. It explained that: (1) “the Supreme Court has stated that a
‘ruling under Rule 12(b)(6) concerns the merits’ of an action for claim preclusion
purposes,” id. at 431 (quoting Brownback v. King, 141 S. Ct. 740, 748 (2021)); (2)
“Kahler I and the instant action both involve the same parties,” i.e., Ms. Kahler and
Walmart, id. at 432; and (3) all of Ms. Kahler’s claims “were or could have been
litigated in Kahler I,” id. at 434. The district court also denied her motion to amend
because the proposed amended complaint would be futile on statute-of-limitations and
claim-preclusion grounds. Final judgment issued that same day. On April 12, 2022, the
district court denied Ms. Kahler’s motion to reconsider.
II. DISCUSSION
We review de novo a district court’s grant of a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). See Tavernaro, 43 F.4th at 1066. “To survive a
motion to dismiss, a complaint must state a claim to relief that is plausible on its face.”
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Id. at 1066–67 (internal quotation marks omitted). Because Ms. Kahler is proceeding
pro se, we construe her filings liberally, but “we will not serve as [her] attorney in
constructing arguments and searching the record.” Eldridge v. Berkebile, 791 F.3d
1239, 1243 n.4 (10th Cir. 2015).
At the outset we agree with the district court that all the claims asserted by Ms.
Kahler arising out of events predating the filing of her Kahler I complaint are
precluded. Claim preclusion, also known as res judicata, “applies when three elements
exist: (1) a final judgment on the merits in an earlier action; (2) identity of the parties
in the two suits; and (3) identity of the cause of action in both suits.” MACTEC, Inc. v.
Gorelick, 427 F.3d 821, 831 (10th Cir. 2005). If these requirements are met, claim
preclusion bars a subsequent suit “unless the party seeking to avoid preclusion did not
have a full and fair opportunity to litigate the claim in the prior suit.” Id. (internal
quotation marks omitted). In this circuit, “a cause of action includes all claims or legal
theories of recovery that arise from the same transaction, event, or occurrence.”
Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997). “[A]ny claims
that [Ms. Kahler] now asserts that are part of the same transaction asserted in h[er]
previous complaint should be precluded, while new and independent claims may go
forward.” Hatch v. Boulder Town Council, 471 F.3d 1142, 1150 (10th Cir. 2006)
(emphasis omitted). Generally, “all claims arising from the same employment
relationship constitute the same transaction or series of transactions for claim
preclusion purposes,” although “claim preclusion does not necessarily bar plaintiffs
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from litigating claims based on conduct that occurred after” the filing of the complaint
in the prior case. Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir. 2000).
For all but one of Ms. Kahler’s claims—namely, her claim relating to the email
sent by Walmart’s lawyer on January 16—every element of claim preclusion is
satisfied, as the district court correctly explained. Nor does Ms. Kahler offer a plausible
argument that she might have lacked “a full and fair opportunity to litigate” these
claims. MACTEC, 427 F.3d at 831 (internal quotation marks omitted). 2
We believe that the district court erred, however, in dismissing as precluded Ms.
Kahler’s claim relating to the January 16 email from Walmart’s counsel. “Each
incident of discrimination and each retaliatory adverse employment decision
constitutes a separate actionable ‘unlawful employment practice.’” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). The January 16 email was sent
after the entry of final judgment on January 10—and thus could not have been known
to Ms. Kahler at any point over the course of Kahler I, let alone when she filed the last
2
Ms. Kahler’s complaint alleges that “Walmart continues Retaliation to the
present day by denying employment to Ms. Kahler based on her legal action of filing
an EEOC charge of age and disability discrimination, filing a legal lawsuit for same
and now this charge of Retaliation.” Aplt. App. at 21. She provides no details about
these claimed refusals to rehire, including such basic information as when she most
recently applied and when she last received notification that her application had been
rejected. It is thus impossible to discern from her complaint whether Ms. Kahler has
applied for a job at Walmart since she filed her complaint in Kahler I. In any event, a
threadbare assertion of a failure to rehire, without any details pleaded in support, fails
to state a claim. Ms. Kahler’s pro se status does not relieve her of “the burden of
alleging sufficient facts on which a recognized legal claim could be based,” and
“conclusory allegations without supporting factual averments are insufficient to state
a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
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version of her Kahler I complaint. As Ms. Kahler argued before us, “It would have
been impossible to bring” this claim before the email was sent on January 16. Aplt.
Reply Br. at 2. “Where the facts that have accumulated after the first action are enough
on their own to sustain the second action, the new facts clearly constitute a new claim,
and the second action is not barred by res judicata.” Hatch, 471 F.3d at 1150 (emphasis
and internal quotation marks omitted). Claim preclusion therefore does not apply to
her claim based on the email exchange.
Nonetheless, we “can affirm the district court’s dismissal on any ground
sufficiently supported by the record.” Tal, 453 F.3d at 1252 (internal quotation marks
omitted). We hold that the January 16 email—which amounted to an unaccepted
settlement offer—cannot support a claim of retaliation. The Supreme Court has said
that “presumably an employee may waive his cause of action under Title VII as part of
a voluntary settlement.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974).
And we have stated that Title VII employment-discrimination claims “may be waived
by agreement” so long as “the waiver of such claims [is] knowing and voluntary.”
Torrez v. Pub. Serv. Co. of N.M., Inc., 908 F.2d 687, 689 (10th Cir. 1990) (per curiam);
accord EEOC v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (“It is hornbook
law that employers can require terminated employees to release claims in exchange for
benefits to which they would not otherwise be entitled.”). Thus, a settlement offer
involving a knowing and voluntary release of claims and other rights is not an adverse
employment action, at least where the employee’s refusal of the offer is not followed
by an additional retaliatory action by the employer (such as withholding a promised
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benefit). Compare, e.g., EEOC v. SunDance Rehab. Corp., 466 F.3d 490, 500–01 (6th
Cir. 2006) (rejecting the argument that a mere offer to settle, “without more, amounts
to facial retaliation” under the ADA, the ADEA, Title VII, or the Equal Pay Act), David
v. Winchester Med. Ctr., 759 F. App’x 166, 169 (4th Cir. 2019) (per curiam) (“Because
[the plaintiff] rejected the proposed agreement, [her former employer] took no adverse
action against her when it simply accepted this rejection and declined to initiate further
negotiations.” (emphasis omitted)), and Dannenbring v. Wynn Las Vegas, LLC, 646 F.
App’x 556, 557 (9th Cir. 2016) (“Dannenbring offers no persuasive explanation of how
an offer of settlement itself could be an adverse employment action.”), with Chapter 7
Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1260 n.8 (11th Cir. 2012) (“It is true that
[settlement offers] ordinarily cannot be [retaliation]. But what Gate Gourmet did was
withhold from [the plaintiff] a light-duty position, which is a benefit that she
undisputedly would otherwise have received under company policy, and it allegedly
did that solely because of her EEOC charge.”), and Paquin v. Fed. Nat’l Mortg. Ass’n,
119 F.3d 23, 32 (D.C. Cir. 1997) (“Fannie Mae’s withdrawal of its severance package
offer, even assuming Fannie Mae had no obligation to provide it, was adverse action”
because “[a]n employer’s withdrawal of a voluntary benefit . . . may constitute adverse
action.”).
Ms. Kahler does not allege facts supporting any argument that Walmart
retaliated against her because she rejected its post-Kahler I offer. Nor does she claim
that the settlement offer itself was less favorable than it might have been but for
discrimination based on a protected trait. Cf. Gerner v. County of Chesterfield, 674
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F.3d 264, 265 (4th Cir. 2012) (plaintiff sufficiently alleged Title VII sex discrimination
where severance offer she received was inferior to that of her similarly-situated male
colleagues). Instead, she alleges that the offer itself, in isolation, was an act of
retaliation. We reject this theory as a matter of law, and therefore we affirm the district
court’s grant of Walmart’s motion to dismiss Ms. Kahler’s complaint.
As for the district court’s denials of her motion to amend her complaint and
motion for reconsideration, Ms. Kahler made no argument in her opening brief
challenging those decisions, let alone explaining how either was an abuse of discretion
warranting reversal. See Adams v. C3 Pipeline Constr. Inc., 30 F.4th 943, 972 (10th
Cir. 2021) (“We ordinarily apply the abuse-of-discretion standard when reviewing a
denial of leave to amend. But when the district court denies leave to amend based on
futility, our review for abuse of discretion includes de novo review of the legal basis
for the finding of futility.” (brackets, citation, and internal quotation marks omitted));
Seminole Nursing Home, Inc. v. Comm’r of Internal Revenue, 12 F.4th 1150, 1160
(10th Cir. 2021) (“We review a district court’s decision denying a motion for
reconsideration for abuse of discretion.” (internal quotation marks omitted)). Instead,
she merely seeks to relitigate the merits of her underlying claims. She has thus waived
any argument that the denials of her motions were in error, see Morris v. Noe, 672 F.3d
1185, 1193 (10th Cir. 2012) (“an issue or argument insufficiently raised in the opening
brief is deemed waived” (brackets and internal quotation marks omitted)), so we affirm
those decisions by the district court as well.
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III. CONCLUSION
We AFFIRM the district court’s orders.
Entered for the Court
Harris L Hartz
Circuit Judge
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