Funches v. MS Devel Auth ( 2023 )

Case: 19-60651 Document: 00516695710 Page: 1 Date Filed: 03/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2023
No. 19-60651 Lyle W. Cayce
Summary Calendar Clerk
Andre Funches, Sr.,
Plaintiff—Appellant,
versus
Mississippi Development Authority; Mississippi State
Personnel Board; Glenn McCullough, In Their
Individual Capacity; Jay McCarthy, In Their Individual
Capacity; Jennifer Sledge, In Their Individual
Capacity; Brian Daniel, In Their Individual Capacity,
Defendants—Appellees.
Appeal from the United States District Court for the
Southern District of Mississippi
USDC No. 3:18-cv-645
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Plaintiff-appellant, Andre Funches Sr., appeals the district court’s
order granting the above-named Defendants’ motion for summary judgment
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 19-60651 Document: 00516695710 Page: 2 Date Filed: 03/30/2023
No. 19-60651
dismissing Plaintiff’s complaint. Because we agree with the district court
that Plaintiff’s action is barred by res judicata, we AFFIRM.
Plaintiff, Andre Funches Sr., was employed by the Defendant
Mississippi Development Authority (“MDA”) for seventeen years. After
working in the Accounting and Finance, Grants Unit for approximately one
year, he applied for the position of Bureau Manager I. However, MDA filled
the position with an allegedly unqualified female under the age of forty. On
June 21, 2018, Plaintiff filed suit, alleging that Defendants, MDA, and
Mississippi State Personnel Board (“MSPB”), along with the individual
defendants,1 violated his civil rights (the “2018 lawsuit”). Plaintiff alleged
claims for age discrimination, sex discrimination, hostile work environment,
improper hiring practices and retaliation, disparate impact, and equal
protection in violation of Article VII of the Civil Rights Act, 42 U.S.C. § 1983,
and the Age Discrimination in Employment Act (“ADEA”). He seeks actual
and punitive damages, along with injunctive and declaratory relief,
requesting that the court order MDA to promote him to the position of
Bureau Manager I or to increase his pay to that of a Bureau Manager I.
On October 16, 2016, Funches filed his first suit in the U.S. District
Court for the Southern District of Mississippi (the “2016 lawsuit”). In that
suit, he asserted the same claims against the same defendants2 and sought the
same relief he seeks in this suit. Specifically, Plaintiff asserted claims for
“Age discrimination, Gender/Sex Discrimination, Hostile Work
Environment, Improper Hiring Practices and Retaliation, Disparate
Treatment, Disparate Impact and Equal Protection.” The district court in
1
Plaintiff sued Defendants Deanne Mosley, Glenn McCullough, Jay McCarthy,
Jennifer Sledge, Barbara Pepper, and Brian Daniel in their individual capacities.
2
Plaintiff’s 2016 complaint also named Deanne Mosley, but she was never properly
served and was dismissed under Federal Rule of Civil Procedure 4(m).
2
Case: 19-60651 Document: 00516695710 Page: 3 Date Filed: 03/30/2023
No. 19-60651
the Southern District of Mississippi granted the Defendants’ motion for
“dismissal/summary judgment.” Funches appealed the district court’s
order, and this Court dismissed his appeal for failure to prosecute on January
3, 2019.
On October 17, 2018, Defendants in the present suit filed a motion for
summary judgment arguing that because Plaintiff’s 2018 lawsuit asserts the
same claims against the same parties advanced in his 2016 lawsuit, the
present action is barred by the doctrines of res judicata and collateral
estoppel.
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.”3 The test for res judicata has
four elements: “(1) the parties are identical or in privity; (2) the judgment in
the prior action was rendered by a court of competent jurisdiction; (3) the
prior action was concluded by final judgment on the merits; and (4) the same
claim or cause of action was involved in both actions.” 4
The district court correctly concluded that all four elements are met
here. The parties in both cases are identical or in privity. The final judgment
on the merits in the 2016 lawsuit was rendered by a court of competent
jurisdiction. Further, a comparison of the pleadings in the two cases reveal
that the same claims or causes of action raised here were presented in the
prior action. Accordingly, Plaintiff’s present lawsuit is barred by res judicata.
3
Allen v. McCurry, 449 U.S. 90, 94 (1980).
4
Comer v. Murphy Oil USA, Inc., 718 F.3d 460, 467 (5th Cir. 2013) (quoting Test
Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005)).
3
Case: 19-60651 Document: 00516695710 Page: 4 Date Filed: 03/30/2023
No. 19-60651
For these reasons and those assigned in the district court’s thorough
and careful opinion, we AFFIRM the district court order.
4