{¶ 2} The employee was an assistant custodian for the board and a member of the union. The pertinent facts that led to this appeal began in 2001 when the board suspended the employee for verbally assaulting a coworker. At the union's request, the board permitted the employee to remain in his position after he signed a "Last Chance Agreement"; however, in 2003, the board terminated the employee for allegedly physically assaulting a supervisor.
{¶ 3} On October 1, 2004, the employee filed a wrongful discharge claim against the board. He alleged that the board discriminated against him based on race and disability when it issued him the Last Chance Agreement and terminated his employment. He also alleged that the board's conduct violated R.C.
{¶ 4} On January 8, 2007, the employee again filed suit against the board alleging race and disability discrimination arising out of the Last Chance Agreement and his termination. His new complaint specifically alleged claims *4
under R.C.
{¶ 6} "The issue of whether res judicata * * * applies in a particular situation is a question of law that is reviewed under a de novo standard." Gilchrist v. Gonsor, Cuyahoga App. No. 88609,
{¶ 7} Res judicata requires a plaintiff to "present every ground for relief in the first action, or be forever barred from asserting it." Id. Res judicata applies to any claim meeting the following three elements: 1) the plaintiff brought a previous action against the same defendant; 2) there was a final judgment on the merits of the previous action; and 3) the new claim was pursued in the first action, or it arises out of the same transaction that was the subject matter of the first action.Smith v. Bd. of Cuyahoga Cty. Commrs., Cuyahoga App. No. 86482,
{¶ 9} In his 2004 complaint, the employee named the board as a defendant. The employee argues that res judicata does not apply to the board because a new defendant (the union) was named in the present case. However, "it is immaterial to considerations of res judicata that Plaintiff has named *6 additional defendants in this case. * * * An alternative rule would enable a plaintiff to frustrate the purpose of the doctrine of res judicata simply by adding a new defendant to each subsequent litigation."Schneider v. United States (D.N.J. 2007), Civ. No. 06-3200. Therefore, we find there is commonality of parties regarding the board.
{¶ 10} Even though the union was not named in the 2004 complaint, res judicata bars this action against it because it is in privity with the board. As parties to a collective bargaining agreement that governed the employee's employment, the board and the union have a contractual relationship, which establishes privity. Further, "a mutuality of interest, including an identity of desired result, creates privity" for the purposes of res judicata. Brown v. City of Dayton,
{¶ 11} Here, the union and the board share a mutual interest in a dismissal of the claims because dismissal of the discrimination claims against the board would cause the employee's claim against the union for breach of duty of representation to fail. Therefore, we find that there is commonality of parties regarding the union. *7
{¶ 14} His claims are barred under Grava, because the claims arise out of the same events as the previous case. In Grava, the Ohio Supreme Court specifically held that res judicata bars claims that could have been brought in the previous case, but had not been brought.Grava, supra, at 382. Therefore, we find that there is commonality of subject matter between the 2004 case and the present case.
{¶ 15} The employee makes a final argument that the present case is not barred by res judicata because, since 2004, new case law has created a new cause of action he could have brought against the board.2 We decline to address the validity or applicability of the new case law to this case because the Ohio Supreme Court has held that even "a change in decisional law which might arguably reverse the outcome in a prior civil action does not bar the application of the doctrine of res judicata."Natl Amusements, Inc. v. City of Springdale (1990),
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
*9The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, P.J., CONCURS; ANN DYKE, J., CONCURS IN JUDGMENT ONLY.
A Appellant's Assignments of Error
I. The trial court erred in dismissing Plaintiff-Appellant's case pursuant to O.Civ. R. 41(A), res judicata, as the case was not one that should have been brought in the previous litigation, Case No. CV04544427, as required by the doctrine of res judicata; as developments in the law had not taken place concerning O.R.C.II. The trial court in the instant case erred as a matter of law in its interpretation of res judicata as the court granted Defendants-Appellees Cleveland Board of Education, et al., and Defendant-Appellee National Conference of Fireman and Oilers, Local 701's Motions to Dismiss on subject matter jurisdiction, which is an exception to res judicata as it is not a judgment on the merits under O.Civ. R. 41(B)(4).
III. The trial court erred in its interpretation of res judicata as to all the elements to satisfy said doctrine being present in the instant case.
IV. The trial court erred as a matter of law in its interpretation of O.R.C.