Emad Elkadrawy v. the Vanguard Group, Inc.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 09-1105 and 09-1206
EMAD ELKADRAWY,
Appellant/Cross-Appellee
v.
THE VANGUARD GROUP, INC.
Appellee/Cross-Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 08-cv-04313)
District Judge: Honorable Petrese B. Tucker
Submitted Under Third Circuit LAR 34.1(a)
September 21, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: October 6, 2009)
Olugbenga O. Abiona, Esq.
1st Floor
1433 South 4th Street
Philadelphia, PA 19147-0000
Counsel for Appellant/Cross-Appellee Emad Elkadrawy

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Joseph J. Costello, Esq.
Sean W. Sloan, Esq.
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103-0000
Counsel for Appellee/Cross-Appellant The Vanguard Group, Inc.
OPINION OF THE COURT
BARRY, Circuit Judge
In a complaint dated May 1, 2008, plaintiff Emad
Elkadrawy, an American citizen of Egyptian origin and a Muslim,
alleged that his former employer, The Vanguard Group, Inc.
(“Vanguard”), discriminated against him on account of his race,
religion, and national origin in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and
his age under the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. On August 12, 2008, the District Court
(Dalzell, J.) dismissed Elkadrawy’s complaint for his failure to
bring his claims within the ninety-day period mandated by 42
U.S.C. § 2000e-5(f)(1).
On September 8, 2008, Elkadrawy filed a second complaint,
alleging race- and national origin-based discrimination and
retaliation in violation of 42 U.S.C. § 1981 and the Pennsylvania
Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 962 et seq.,
also against Vanguard. On December 5, 2008, the District Court
(Tucker, J.) dismissed Elkadrawy’s federal claims as barred by the
doctrine of res judicata. The Court also dismissed the PHRA claim
without prejudice to its renewal in state court. The parties’
cross-appeals followed.
Elkadrawy challenges the dismissal of his federal claims,
arguing that res judicata does not apply because (1) his prior

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complaint had not been resolved “on the merits” and (2) his § 1981
claims do not arise from the same material facts as his Title VII
claims. Vanguard, on cross-appeal, argues that the District Court
should have dismissed the PHRA claim with prejudice on res
judicata grounds, because it is based on the same set of facts
underlying the Title VII claims dismissed as part of Elkadrawy’s
first complaint. We will affirm.
I.
Elkadrawy was employed as a corporate accountant for
Vanguard from October 2000 until December 2007. On May 21,
2007, he filed a charge of discrimination with the Pennsylvania
Human Rights Commission (“PHRC”) and the Equal Employment
Opportunity Commission (“EEOC”). On February 4, 2008, the
EEOC notified him that it was closing his file and provided notice
of his right to sue. He received substantially the same notice from
the PHRC by its letter of April 21, 2008.
On May 1, 2008, Elkadrawy filed a pro se form complaint,
with his EEOC charge and right-to-sue letter attached thereto. His
PHRC notice was not attached and his filing with the PHRC was
only obliquely mentioned in the EEOC charge. The complaint
alleged (1) that Vanguard refused to provide the work experience
and verification he needed to become a Certified Public
Accountant, even though similarly situated co-workers were
routinely afforded that opportunity, and (2) that he received a poor
performance review four days after filing with the EEOC.
Although his complaint named Vanguard as the only defendant,
Elkadrawy mentioned three specific Vanguard employees.
Elkadrawy also filed a motion to proceed in forma pauperis, which
was denied on May 5, 2008. On May 13, 2008, he paid his filing
fee, and his complaint was docketed. On May 27, 2008, counsel
entered an appearance on his behalf.
On August 12, 2008, Judge Dalzell dismissed Elkadrawy’s
first complaint with prejudice as time-barred. The Court observed
that Elkadrawy constructively received his EEOC right-to-sue letter
on February 7, 2008. Elkadrawy paid his filing fee on May 13,
2008, ninety-two days after his receipt of the right-to-sue letter, and

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The time for filing was equitably tolled during the brief1
period of time that his in forma pauperis motion was pending.
In this second group, Elkadrawy alleges: (1) Vanguard’s2
human resources department failed to investigate his claims of
discrimination; (2) he received unwarranted negative performance
reviews; (3) he was encouraged not to seek accounting
certification; (4) he received lower pay than Caucasian co-workers;
(5) he received more work assignments than Caucasian co-workers;
and (6) he was subjected to several threatening, demeaning, and/or
racially-insensitive remarks.
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therefore in violation of 42 U.S.C. § 2000e-5(f)(1).1
Elkadrawy filed his counseled second complaint on
September 8, 2008. The allegations in that complaint can be
divided into two groups. The allegations of discrimination set forth
at ¶¶ 11-19 are indistinguishable from the allegations contained in
his EEOC filing and first complaint. In his brief to us, Elkadrawy
explains that these allegations were included in his second
complaint only to support his previously unraised PHRA claims.
The allegations at ¶¶ 20-29 constitute new claims, raised in neither
the EEOC charge nor the first complaint, which implicate
previously unmentioned Vanguard employees. Elkadrawy asserts2
that these allegations support only the § 1981 claims.
Vanguard moved to dismiss Elkadrawy’s second complaint
in its entirety on res judicata grounds. As to the federal claims, the
District Court held that Elkadrawy’s “current § 1981 claims and
previous Title VII claims quite clearly rest upon the same facts of
alleged discrimination by Defendant, and would require
presentation of the same evidence.” (App. 4-5 n.1.) As “[t]he
ninety-day filing requirement for Title VII claims has been treated
by the courts as a statute of limitations,” and “[t]he rules of finality
. . . treat a dismissal on statute-of-limitations grounds as a judgment
on the merits,” the Court found the federal claims precluded. (Id.
(citations omitted).) The Court then noted that, pursuant to the
PHRA, 43 Pa. Cons. Stat. § 962(c), Elkadrawy had two years from
the dismissal of his complaint by the PHRC to file suit against
Vanguard. As that time had not elapsed by the filing of the second

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complaint, and the ninety-day limitation that required dismissal of
the first complaint was inapplicable to Elkadrawy’s PHRA claim,
the Court concluded that res judicata did not apply and dismissed
that claim without prejudice to it being reraised in state court.
Although not explicitly stated, we infer that the Court declined to
exercise supplemental jurisdiction over the remnant PHRA claim
under 28 U.S.C. § 1367(c)(3).
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
Our review of an application of res judicata is plenary. See
Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d
244, 248 (3d Cir. 2006). We review a district court’s refusal to
exercise supplemental jurisdiction for abuse of discretion. See
Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir.
1999).
III.
In order to prevail on a defense of res judicata, a defendant
must demonstrate that there has been: (1) a final judgment on the
merits in a prior suit; (2) involving the same parties or their privies;
and (3) a subsequent suit based on the same cause of action.
Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991).
Only the first and third of these considerations are at issue in this
appeal.
A. The Dismissal of Elkadrawy’s Federal Claims With
Prejudice
Elkadrawy claims, first, that res judicata does not apply
because the District Court dismissed his first complaint on
technical procedural grounds, not on the merits. This is incorrect.
Section 2000e-5(f)(1) requires that claims brought under Title VII
be filed within ninety days of the claimant’s receipt of the EEOC
right to sue letter. 42 U.S.C. § 2000e-5(f)(1). We treat this
requirement as a statute of limitations rather than a jurisdictional

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prerequisite to suit. See Figueroa, 188 F.3d at 176. “The rules of
finality . . . treat a dismissal on statute-of-limitations grounds . . .
as a judgment on the merits.” Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 228 (1995); see also Fed. R. Civ. P. 41(b) (“[A]ny
dismissal not under this rule – except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19 – operates
as an adjudication on the merits.”).
While we have yet to address this issue in the context of
successive discrimination claims, other circuits have done so. In
Nilsen v. City of Moss Point, 701 F.2d 556 (5th Cir. 1983), the
Fifth Circuit dismissed the plaintiff’s § 1983 claims because earlier
Title VII claims were dismissed as untimely. Id. at 562. The
Eighth Circuit puts it succinctly: “a disposition of a Title VII action
as untimely filed is a decision on the merits for purposes of res
judicata.” Mills v. Des Arc Convalescent Home, 872 F.2d 823, 826
(8th Cir. 1989) (dismissing the plaintiff’s second complaint raising
§ 1981 claims). In the absence of countervailing precedent, we
adopt the reasoning of our sister circuits and conclude that
Vanguard satisfies the “on the merits” prong of the res judicata
analysis.
The closer question is whether Elkadrawy’s § 1981 claims
arise from the same set of facts as his Title VII claims. This
analysis does not depend on the specific legal theory invoked, but
rather “the essential similarity of the underlying events giving rise
to the various legal claims.” Davis v. U.S. Steel Supply, 688 F.2d
166, 171 (3d Cir. 1982). “[T]he focal points of our analysis are
whether the acts complained of were the same, whether the
material facts alleged in each suit were the same and whether the
witnesses and documentation required to prove such allegations
were the same.” United States v. Athlone Indus., Inc., 746 F.2d 977,
984 (3d Cir. 1984). Moreover, “res judicata bars not only claims
that were brought in the previous action, but also claims that could
have been brought.” See Post v. Hartford Ins. Co., 501 F.3d 154,
169 (3d Cir. 2007).
It does not matter for res judicata purposes that Elkadrawy
proceeds under § 1981 rather than Title VII. He concedes that the
allegations set forth at ¶¶ 11-19 of his second complaint are

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indistinguishable from the allegations in his first complaint and,
thus, that his federal claims would be barred if these were the only
allegations raised. But he insists that the remaining factual
allegations in his second complaint, ¶¶ 20-29, are based on
different, heretofore unalleged facts and, accordingly, do not arise
from the same cause of action. These allegations are, indeed,
different, as they involve supervisors and discrete discriminatory
acts not referenced in the first complaint.
Even crediting Elkadrawy’s attempt to distinguish his
second set of facts as “new,” it is beyond dispute that these
allegations “could have been brought” as part of his first complaint.
Elkadrawy could have alleged the § 1981 claims in his first
complaint, or amended that complaint to add these “new” claims,
especially as they involve fundamentally similar issues and are
alleged against the same lone defendant. Even those factual
allegations that were not raised before the EEOC took place prior
to the end of Elkadrawy’s employment in December 2007, and
could have been alleged in a complaint filed some five months
later.
The fact that several new and discrete discriminatory events
are alleged does not compel a different result. A claim
extinguished by res judicata “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.” Restatement (Second) of Judgments § 24(1) (1982)
(emphasis added). Considered pragmatically, these allegations are
indisputably connected: they arise out of a single employment
relationship and involve some form of race- or national origin-
based discrimination. Accordingly, we will affirm the District
Court’s dismissal of Elkadrawy’s federal claims with prejudice.
B. The Dismissal of Elkadrawy’s State Claim Without
Prejudice
We turn next to Vanguard’s cross-appeal. In opting to
dismiss Elkadrawy’s state claim without prejudice, the District
Court held that, as the ninety-day filing requirement for Title VII
claims has no bearing on the timeliness of a PHRA claim, which

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carries a two-year filing window, res judicata did not apply. We
disagree. Elkadrawy concedes that his PHRA claim rests on
allegations raised in his first complaint. As those allegations were
resolved on the merits, res judicata, applied in isolation, bars
subsequent claims arising from the same set of facts, including
state claims.
Our conclusion does not compel reversal, however. See
Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc) (“We
may affirm the District Court on any grounds supported by the
record.”). We have affirmed a district court’s decision not to
exercise supplemental jurisdiction even where, as here, the court
does not refer to 28 U.S.C. § 1367 in its decision. See Hedges v.
Musco, 204 F.3d 109, 123 (3d Cir. 2000); Figueroa, 188 F.3d at
181-82. Vanguard asks us, in essence, to determine whether the
District Court abused the discretion afforded it by § 1367(c)(3)
when it declined to exercise supplemental jurisdiction over his state
claim and dismissed without prejudice instead of dismissing that
claim with prejudice as precluded on res judicata grounds.
A district court may decline to exercise supplemental
jurisdiction over a claim if “the district court has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(3). Here, once the District Court dismissed Elkadrawy’s
federal claims, leaving only the state claim, the prerequisites for §
1367(c)(3) were met. Vanguard identifies no case law suggesting
a strict order of decision whereby res judicata, if applicable,
supercedes a district court’s exercise of the discretion expressly
afforded by § 1367(c)(3). Accordingly, we will affirm the Court’s
exercise of its discretion.
IV.
In light of the foregoing, we will affirm the District Court’s
dismissal of Elkadrawy’s federal claims with prejudice and its
dismissal of Elkadrawy’s state claim without prejudice.

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