ANICA ASHBOURNE, APPELLANT v. DONNA HANSBERRY, DIRECTOR, GLOBAL HIGH WEALTH, ET AL., APPELLEES
No. 17-5136
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted April 3, 2018 Decided June 29, 2018
Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-00908)
Anica Ashbourne, pro se, was on the briefs for appellant.
Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Benton Peterson, Assistant U.S. Attorneys, were on the brief for appellees.
Before: TATEL, SRINIVASAN and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT,
I
In June 2010, the Department of the Treasury’s Internal Revenue Service hired Anica Ashbourne, a tax attorney and certified public accountant, into its Global High Wealth division, subject to a one-year probationary period. Shortly before her probationary year expired, the IRS terminated Ashbourne for having provided false or misleading information about her employment history in the job application process. The termination became final on May 28, 2011.
Ashbourne I
Ashbourne brought challenges related to her termination on two separate fronts: She raised Title VII claims asserting race and gender discrimination in a Treasury Department administrative proceeding, and she pressed a number of other challenges tied to her termination in federal court.
On the federal-court front, Ashbourne filed three separate lawsuits in the United States District Court for the District of Maryland between September 30 and November 30, 2011. Ashbourne’s first complaint alleged that the Treasury Department and her former supervisors violated her constitutional right to due process by jeopardizing her chances for future employment without an evidentiary hearing. Ashbourne v. Geithner, 8:11-cv-02818-RWT (D. Md. Sept. 30, 2011). Her two subsequent complaints collectively alleged violations of her statutory rights under the Age Discrimination in Employment Act,
The district court in Maryland consolidated all three complaints into a single action. Ashbourne v. Geithner, 2012 WL 2874012, at *1 (D. Md. July 12, 2012). At no point did Ashbourne raise any claims under Title VII in her consolidated cases. See id.
On the administrative front, Ashbourne filed a complaint in November 2011 with the Treasury Department’s equal employment opportunity office, in which she alleged that her termination and related events violated Title VII. Treasury denied her administrative claim in December 2012, and informed Ashbourne that she could either appeal that decision to the Equal Employment Opportunity Commission (EEOC) or file a civil suit in district court. Ashbourne v. Hansberry, 1:16-cv-908-CKK, ECF No. 6-2 (D.D.C. Aug. 18, 2016) (Ashbourne II). Treasury also informed her that, if she chose EEOC review, she could still file a civil action if the EEOC did not issue a final decision within 180 days. Id.
On January 26, 2013, Ashbourne chose to appeal to the EEOC rather than to join her Title VII claims with her pending litigation.
Meanwhile back in the courtroom, the district court transferred Ashbourne’s three consolidated complaints to the United States District Court for the District of Columbia. Ashbourne, 2012 WL 2874012, at *5; see also Ashbourne v. Geithner, 1:12-cv-1154-BAH, ECF No. 10 (D.D.C. July 12, 2012) (Ashbourne I). Ashbourne moved the D.C. district court to transfer the case back to Maryland, but the court declined. Ashbourne I, 1:12-cv-1153-BAH, Minute Order (D.D.C. Dec. 5, 2012).
When the case returned to district court, Ashbourne was ordered to file a single, consolidated complaint that would contain[] all claims remaining in this consolidated case. Ashbourne I, 1:12-cv-1153-BAH, ECF No. 44 at 2 (D.D.C. Aug. 9, 2013). She complied on October 29, 2013. Ashbourne’s consolidated complaint asserted only her claim under the Due Process Clause and four causes of action under the Privacy Act. Id., ECF No. 49 (D.D.C. Oct. 29, 2013). Title VII was nowhere mentioned in the consolidated complaint, even though Ashbourne had been advised that she could have brought suit on her Title VII claims due to the EEOC’s delay in ruling,
In September 2015, the EEOC dismissed Ashbourne’s appeal of her Title VII claims on the ground that its regulations prohibit the simultaneous pursuit of administrative and judicial remedies. See
Around that same time, the district court dismissed Ashbourne’s alleged Due Process Clause violation, which she had filed under
Two months later, the district court sua sponte dismissed Ashbourne’s Privacy Act claims against the individual defendants because the Act provides a cause of action only against federal agencies. Ashbourne I, 2015 WL 11303198, at *11 (D.D.C. Nov. 24, 2015). And the court granted summary judgment for the agency on the ground that Ashbourne failed to adduce evidence of a single instance in which the agency either improperly disclosed her records or relied on inaccurate records in reaching its termination decision. Id. at *8-10.
Closing the loop on Ashbourne I, this court affirmed the district court’s final judgment on the ground that Ashbourne’s claims impermissibly recast a federal personnel management decision as a factual challenge under the Privacy Act, and that she had received adequate process to protect her professional reputation. Ashbourne v. Hansberry, 703 F. App‘x 3, 4 (D.C. Cir. 2017) (mem.).
Ashbourne II
In May 2016, roughly eight months after the EEOC dismissed her administrative appeal and about six months after the district court entered judgment for the government in Ashbourne I, Ashbourne filed a second complaint in the District of Columbia district court. Ashbourne II, 1:16-cv-908-CKK, ECF No. 1 (D.D.C. May 18, 2016). This time, Ashbourne alleged that her firing violated Title VII. The Title VII complaint was against the same defendants and involved the same factual allegations of adverse employment actions involving unequal pay, a hostile work environment, and termination as Ashbourne I. Id. ¶¶ 3-25.
The district court dismissed the complaint on the ground that the Title VII claims were barred by res judicata. Ashbourne II, 245 F. Supp. 3d 99, 101 (D.D.C. 2017). The district court concluded that the Title VII complaint arose out of the same nucleus of operative facts surrounding her termination and involved the same parties as Ashbourne I. Id. at 104-105; compare Ashbourne II, 1:16-cv-908-CKK, ECF No. 1, Compl. ¶¶ 8-25 (describing circumstances of Plaintiff’s termination from the Treasury Department), with Ashbourne I, 1:12-cv-1153-BAH, ECF No. 49, Amended Compl. ¶¶ 20-40 (same). Because Ashbourne’s challenges to the same actions of the same defendants had already been fully adjudicated on the merits by the district court in Ashbourne I, and because Ashbourne neither joined her Title VII claims when able nor sought a stay pending exhaustion from the district court, the court ruled that traditional claim-preclusion principles barred further prosecution of the case. Ashbourne II, 245 F. Supp. 3d at 104-106.
II
Ashbourne’s attempt to relitigate employment claims resolved against her in favor of the same defendants in her first lawsuit fits res judicata doctrine to a T. The only colorable argument that Ashbourne asserts to fend off res judicata is that she had not been given a timely right-to-sue letter in her administrative proceedings. But when, as here, the absence of that letter was no barrier to joining the claims to her pending federal court action, Ashbourne’s voluntary choice to stick with the administrative forum is just as much subject to res judicata consequences as any other strategic choice to withhold a claim from litigation.
We review de novo the district court’s application of res judicata. Ibrahim v. District of Columbia, 463 F.3d 3, 7 (D.C. Cir. 2006).
Res judicata is an ancient legal doctrine that, in simple terms, limits parties to one bite at the litigation apple. Generally speaking, it bars successive lawsuits if a prior litigation (1) involving the same claims or causes of action, (2) between the same parties or their privies, (3) ended in a final, valid judgment on the merits, (4) entered by a court of competent jurisdiction. Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). Whether successive cases involve the same cause of action turns on whether the[] [causes of action] share the same nucleus of facts. Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (internal quotation marks omitted). Said another way, the test is whether the latter case involves issues that were or could have been raised in the earlier case. Allen v. McCurry, 449 U.S. 90, 94 (1980). Summary judgment and dismissal for failure to state a claim both constitute final judgments on the merits. See Prakash v. American Univ., 727 F.2d 1174, 1182 (D.C. Cir. 1984); see also Bell v. Hood, 327 U.S. 678, 682 (1946).
Ashbourne’s second lawsuit checks every one of those boxes. The district court’s jurisdiction in the original case is unquestioned. Ashbourne’s Title VII claims and the claims already fully adjudicated on the merits in Ashbourne I share a common genesis: the termination of her federal employment and alleged adverse
The only question is whether the administrative exhaustion requirements for Title VII claims change the res judicata calculus. We hold that administrative exhaustion does not do so if the plaintiff had a full and fair opportunity to bring the Title VII claims in the initial action. Ashbourne had two distinct opportunities to join her Title VII claims to her pending litigation and multiple chances to seek a stay in district court, but availed herself of none of them.
First, she could have added the Title VII claims to her litigation after Treasury’s equal employment opportunity office denied her claim in December 2012. See
Second, she could have added her Title VII claims to the final consolidated complaint filed in district court after the transfer, when the district court specifically invited her to include all claims she wished to litigate against the defendants in a single proceeding. Ashbourne I, 1:12-cv-1153-BAH, ECF No. 44 (D.D.C. Aug. 9, 2013) ([I]n the interest of judicial efficiency * * * [Ashbourne] is directed to file by September 11, 2013, a single, consolidated complaint containing all claims remaining in this consolidated case so as to allow the defendants to address all remaining claims in this action in a single motion[.]) (emphasis added). Exhaustion was no bar at that point because the EEOC had failed to issue a decision within 180 days, which freed her to proceed to district court without awaiting further EEOC action or notice of her right to sue. See
Ashbourne, of course, had the right to prefer the continued pursuit of administrative review to federal court litigation. But that choice, like any other strategic choice a party might make to refrain from litigating a particular claim, has res judicata consequences.
In so holding, we find ourselves in good company. Every other circuit to address the question has held that res judicata principles apply to claims that could have been included in the earlier litigation. See, e.g., Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992) ([T]he language and policy of Title VII do not undercut the application of res judicata, and we see no reason militating against application of well-settled claim preclusion principles.); Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 314 (5th Cir. 2004) (While factual allegations articulated in the [later Title VII lawsuit] differ, all of the claims in question originate from the same continuing course of allegedly discriminatory conduct[.]); Herrmann v. Cencom Cable Assocs., 999 F.2d 223, 225 (7th Cir. 1993) (concluding that where one transaction [i]s alleged to violate a host of different laws, [] it would not make much sense to say that the plaintiff must file all but the
Alternatively, Ashbourne could have sought a stay of the initial litigation from the district court pending the conclusion of administrative proceedings. That would have put everyone on notice that she was seeking to vindicate Title VII claims alongside the other constitutional and statutory claims already being litigated, and would have allowed the district court to take the procedural steps necessary to efficiently manage the litigation. But Ashbourne did not pursue a stay of the district court proceedings either. See, e.g., Battle v. Peters, No. 06-5424 (D.C. Cir. Aug. 9, 2007) (unpub. mem.) (explaining that obtaining a stay of the first action until receipt of the right-to-sue letter for the Title VII claims could prevent res judicata from attaching); Woods, 972 F.2d at 39 (We are of the firm opinion that a district court faced with a stay request in this type of situation—where a Title VII plaintiff is seeking to defer further proceedings in non-Title VII causes of action while pursuing Title VII administrative remedies—should grant the stay absent a compelling reason to the contrary.); Davis, 383 F.3d at 315 (agreeing with Woods that staying the first-filed action would have prevented a res judicata bar to subsequent Title VII claims); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714-715 (9th Cir. 2001) (unless a plaintiff seeks a stay from the district court to pursue administrative remedies or attempts to amend the complaint to include Title VII claims, those claims are subject to res judicata); Wilkes v. Wyoming Dep‘t of Employment, 314 F.3d 501, 506 (10th Cir. 2002) (holding that Title VII claim was barred where plaintiff neither sought a stay, nor attempted to amend after later receiving a right-to-sue letter); cf. Air Line Pilots Ass‘n v. Miller, 523 U.S. 866, 879 n.6 (1998) (noting district courts’ discretion to defer * * * proceedings pending the prompt conclusion of other proceedings bearing upon the federal litigation).
Nor did Ashbourne seek expedited issuance of a right-to-sue letter from the EEOC so that she could timely join the Title VII claims to the pending litigation. See Herrmann, 999 F.2d at 225; Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032-1033 (6th Cir. 1998) (plaintiff who could have received a right-to-sue letter and could have perfected claims during the pendency of the first-filed action was barred by res judicata from bringing subsequent Title VII suit); Heyliger v. State Univ. & Community College Sys., 126 F.3d 849, 854-856 (6th Cir. 1997) (requiring a plaintiff to seek a right-to-sue letter and to amend his complaint to add the federal claim would not impose a burden on him beyond ordinary due-diligence requirements); see also Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000) (finding that res judicata precluded Americans with Disabilities Act claim where plaintiff failed to obtain right-to-sue letter during pendency of previous litigation); Churchill v. Star Enters., 183 F.3d 184, 193-194 (3d Cir. 1999) (same).
Here, Ashbourne, a licensed attorney, failed at every turn to avail herself of the procedural safeguards available for prosecuting or preserving her Title VII claims.
Ashbourne’s passing suggestion that her Title VII claims arose out of a different nucleus of relevant facts from those at issue in Ashbourne I is without merit. See Ashbourne Br. 20. As the district court found, the operative complaints in Ashbourne’s first and second federal actions are both predicated on her termination and interrelated adverse employment actions. See Ashbourne II, 245 F. Supp. 3d at 104. So both cases arise from the same factual circumstances. Even Ashbourne concedes, as she must, that her termination is a common fact in all of her lawsuits. Ashbourne Br. 20. There is, in short, no factual basis for extracting Ashbourne’s Title VII claims from the same nucleus of operative facts that underlay her first action. Accordingly, well-established principles of res judicata foreclose her Title VII claims.
Ashbourne also argues that her motion in this court to hold the retransfer appeal in abeyance should have sufficed to preserve her Title VII claims. Ashbourne Br. 17-18; Reply Br. 10-11. Ashbourne is correct that she styled that request as a Motion to Stay Proceedings and Memorandum in Support. No. 13-5006, Doc. No. 1420479 (Feb. 13, 2013). But that is not enough.
For starters, that document never references Title VII, administrative exhaustion, or res judicata. She nowhere explains that the appellate stay she is seeking is needed to also halt the district court litigation in order to preserve a Title VII claim that she could not otherwise bring. More to the point, no stay motion was filed in district court, as the rules require when a stay of district court proceedings is sought.
III
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.