611 F. App'x 496
10th Cir.2015Background
- Fred Johnson, an employee of the Department of Veterans Affairs, was fired and pursued arbitration alleging retaliation for filing an EEOC charge; the arbitration resulted in an adverse, final award.
- Years later Johnson filed an administrative claim before the Merit Systems Protection Board (MSPB) alleging retaliation for reporting an altercation (a different asserted retaliatory motive tied to the same firing).
- The MSPB dismissed the later claim on res judicata grounds, concluding the claim could have been raised in the earlier arbitration.
- Johnson argued he could not have litigated the later claim in arbitration because (1) his union allegedly restricted arbitration of individual/whistleblower claims and (2) the agency/Board failed to inform him of all available remedies (including arbitration and referral to the Office of Special Counsel).
- The Tenth Circuit reviewed the MSPB’s application of res judicata de novo and affirmed, concluding all four res judicata elements were satisfied and that Johnson had a full and fair opportunity to raise the claim in arbitration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars Johnson’s later MSPB claim that could have been raised in earlier arbitration | Johnson: cannot litigate the new theory because union/statutory limits and lack of notice prevented inclusion | Agency: arbitration covered grievances arising from firing; arbitration was available and provided full and fair opportunity | Held: Res judicata applies; the later claim is barred because it arose from the same transaction and could have been litigated earlier |
| Whether union restrictions prevented Johnson from raising the new claim in arbitration | Johnson: union disallowed arbitration of individual/whistleblower claims, so he lacked opportunity | Agency: collective bargaining agreement permitted grievances over employment matters and the prior arbitration included a related retaliation grievance | Held: Rejected—argument forfeited and, on the merits, arbitration could have encompassed the claim |
| Whether lack of notice from the agency/Board about available remedies (arbitration or OSC) defeats res judicata | Johnson: he wasn’t informed about arbitration or OSC remedies, so cannot be bound | Agency: even assuming nondisclosure, res judicata focuses on whether prior proceedings offered a full and fair opportunity to litigate | Held: Rejected—failure to disclose remedies does not negate res judicata absent procedural unfairness |
| Whether court should reach the merits of the retaliation claim | Johnson: merits (he was a good employee; firing improper) | Agency: merits are irrelevant if res judicata bars the claim | Held: Court declined to reach merits because res judicata disposes of the case |
Key Cases Cited
- MACTEC, Inc. v. Gorelick, 427 F.3d 821 (10th Cir.) (res judicata review and finality of arbitration awards)
- In re Mersmann, 505 F.3d 1033 (10th Cir.) (elements of res judicata and full and fair opportunity concept)
- Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329 (10th Cir.) (transactional approach to identity of cause of action)
- Nwosun v. General Mills Rests., Inc., 124 F.3d 1255 (10th Cir.) (transactional test for related claims)
- Mitchell v. City of Moore, 218 F.3d 1190 (10th Cir.) (multiple employment-related claims constitute same transaction)
- Gorsuch, Ltd. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230 (10th Cir.) (forfeiture/waiver principles)
- Sil Flo, Inc. v. SFHC, Inc., 917 F.2d 1507 (10th Cir.) (factors for assessing whether prior proceeding afforded full and fair opportunity)
- Kremer v. Chemical Construction Corp., 456 U.S. 461 (U.S.) (res judicata applies absent doubts about fairness of prior procedures)
- Johnson v. Department of Veterans Affairs, 625 F.3d 1373 (Fed. Cir.) (collective-bargaining agreement grievance analysis)