Anica Ashbourne v. Donna Hansberry , 894 F.3d 298 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted April 3, 2018 Decided June 29, 2018
No. 17-5136
ANICA ASHBOURNE,
APPELLANT
v.
DONNA HANSBERRY, DIRECTOR, GLOBAL HIGH WEALTH, ET
AL.,
APPELLEES
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, Circuit Judge: This appeal turns on the answer
to a single question: Are Anica Ashbourne’s employment
discrimination claims under Title VII, 42 U.S.C. § 2000e et
2
seq., subject to ordinary principles of res judicata, even though
at the time she filed her earlier suit she had not yet received a
notice of her right to sue for those claims? We now join every
circuit court to have addressed that question, as well as a
number of our own prior unpublished dispositions, and hold
that res judicata applies to such Title VII claims, at least in the
absence of a particularized showing that prosecuting or
otherwise preserving the claims in the initial litigation was
infeasible. Because including Ashbourne’s Title VII claims in
her initial litigation was entirely feasible, the judgment of the
district court is affirmed.
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
3
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, 29 U.S.C. § 621 et seq., the Equal Pay Act,
29 U.S.C. § 206(d)(1), and the Privacy Act, 5 U.S.C. § 552A.
See Ashbourne v. Geithner, 8:11-cv-03199-RWT (D. Md. Nov.
9, 2011); Ashbourne v. Department of the Treasury, 8:11-cv-
03456-RWT (D. Md. Nov. 30, 2011).
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.
4
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).
Ashbourne appealed the denial of retransfer, and moved
this court to hold the appeal in abeyance until the EEOC acted
on her pending Title VII claims. Ashbourne v. Wolin, No. 13-
5006, Motion to Stay Proceedings at 3, ECF No. 1420479
(D.C. Cir. Feb. 13, 2013). Treating Ashbourne’s interlocutory
appeal as a petition for a writ of mandamus, see In re Briscoe,
976 F.2d 1425, 1426 (D.C. Cir. 1992) (per curiam), this court
denied both the challenge to the transfer and the motion for
abeyance. See Ashbourne v. Wolin, No. 13-5006, ECF No.
1442038 (D.C. Cir. June 19, 2013).
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, 42 U.S.C. § 2000e-16(c). See
Ashbourne II, 1:16-cv-908-CKK, ECF No. 6-2. Neither did
she ask the district court for a stay of proceedings pending the
5
EEOC’s decision or otherwise notify the court of the pending
administrative Title VII claims.
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 29 C.F.R. § 1614.409. Ashbourne did not
notify the district court of that dismissal or seek to add the Title
VII claims to her pending case.
Around that same time, the district court dismissed
Ashbourne’s alleged Due Process Clause violation, which she
had filed under 42 U.S.C. § 1983, for failure to state a plausible
legal claim for relief. Ashbourne I, 2014 WL 12666716, at *1
(D.D.C. Sept. 3, 2014). The court also dismissed without
prejudice the claims against the defendants in their personal
capacities for improper service of process. Id.
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.).
6
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. ¶¶ 325.
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.
7
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
8
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 employment actions tied up with that
termination. And the Title VII lawsuit targets the same
defendants that had already been forced to defend the same
conduct against factually related claims, on which they
obtained a judgment on the merits in their favor. See
Ashbourne II, 245 F. Supp. 3d at 104–106.
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 42 U.S.C.
§ 2000e–16(c) (indicating that, after timely filing a formal
administrative complaint, a federal employee may file a civil
action in federal court within ninety days of receiving the
agency’s notice of a final administrative decision). At that
point, her consolidated cases were at a very early procedural
juncture—it was nearly nine months before the district court
ordered Ashbourne to file a final, consolidated complaint
containing all claims—so the addition of new claims was
9
presumptively permissible. See FED. R. CIV. P. 15(a)(2) (“The
court should freely give leave [to amend the complaint] when
justice so requires.”).
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 42 U.S.C. § 2000e-16(c).
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
10
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 Title VII claim in one suit but may
wait and bring a second suit charging violations of Title VII
alone”). Prior unpublished decisions from this court are of the
same mind. See Coleman v. Potomac Elec. Power Co., No.
04-7043 (D.C. Cir. Oct. 19, 2004) (unpub. mem.) (affirming
that res judicata barred a Title VII retaliation claim where all
alleged factual predicates for the retaliation claim were
adjudicated in previous suit); Yelder v. Gates, No. 10-5285
(D.C. Cir. Dec. 28, 2010) (unpub. mem.) (same).
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
11
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
12
prosecuting or preserving her Title VII claims. She has
identified no reason why, with ordinary diligence, she could
not have litigated or otherwise preserved her Title VII claims
in the initial litigation. Neither the administrative agencies
nor the district court impeded the inclusion of her Title VII
claims in Ashbourne I. Nor was a reasonable request for a stay
of litigation denied by the district court.
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
13
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. FED. R.
APP. P. 8; see D.C. CIR. RULE 8. Instead, Ashbourne filed her
motion in this court seeking only to stay this court’s action on
her interlocutory appeal challenging the transfer decision.
Ashbourne never sought a stay of the district court litigation
pending exhaustion of her administrative remedies.
Ashbourne’s belated effort to repurpose her filing in this court
thus is no answer to settled res judicata law.
III
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.