United States District Court, D. Columbia
August 25, 2005.
EMANUEL JOHNSON, JR., Plaintiff,
JOHN ASHCROFT et. al., Defendants.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case comes before the court on the defendants' motion for
summary judgment. The pro se plaintiff is an African-American
former special agent with the Federal Bureau of Investigation
("FBI"). The plaintiff alleges that the defendant maintained a
racially discriminatory hostile work environment that led to his
constructive discharge. The defendant argues that the plaintiff's
claims are barred by res judicata and moves the court for summary
judgment. Because the court concludes that the plaintiff's claims
are barred by previous settlement agreements, the court grants
the defendants' motion for summary judgment. II. BACKGROUND
A. Factual History
The plaintiff, an African-American man, was employed as a
special agent for the Department of Justice ("DOJ"), FBI, between
January 15, 1973 and May 3, 1999. Am. Compl. ¶¶ 18-19. In 1991,
the plaintiff, along with other African-American special agents,
brought a class action suit before Chief Judge Hogan in this
court. Id. at ¶ 121. That lawsuit, known as the BADGE lawsuit,
settled on October 14, 1993, when the court approved a settlement
agreement. Id. at ¶ 123. Under the terms of the BADGE
settlement agreement, the plaintiff class waived any then-pending
claims arising out the defendant's discriminatory employment
practices. Defs.' Mot., Ex. 4 ("1993 Settlement Agreement") at
55. The 1993 Settlement Agreement also provided a mechanism for
bringing any retaliation claims that might arise as a result of
the plaintiffs' participation in the BADGE suit. Id. at 58-60.
In 2000, the parties amended the settlement agreement, Defs.'
Mot., Ex. 5 ("Mediation Settlement Agreement") at 1, to "resolve
all outstanding class issues related to promotions, discipline,
and performance evaluations raised by plaintiffs in mediation,"
Defs.' Mot., Ex. 6 ("Notice of Proposed Mediation Settlement
Agreement") at 4.
After the BADGE lawsuit settled, the plaintiff brought another
lawsuit, Johnson v. Reno, 93-cv-2234, before Judge Jackson in
this court, alleging retaliation based on his role as the lead
plaintiff in the BADGE suit. Am. Compl. ¶ 223; Defs.' Mot. at 7.
The parties settled the suit on June 1998. Defs.' Mot. at 5. The
suit was based on Equal Employment Opportunity Commission
("EEOC") complaint F-89-4155. Id.
In addition to EEOC complaint F-89-4155, the plaintiff brought
five other EEOC complaints under the auspices of the BADGE settlement agreement,
namely: (1) F-95-4707, filed on December 14, 1994, (2) F-95-4607,
filed on May 31, 1995, (3) F-96-4784, filed on January 16, 1996,
(4) F-96-4881, filed on October 22, 1996, and (5) F-97-4967,
filed on May 9, 1997. Defs.' Mot. at 7. According to the
defendants, all five EEOC complaints were "administratively
closed." Id. The plaintiff subsequently re-filed F-97-4967 as
F-97-5049 on September 19, 1997. Id.; Defs.' Mot., Ex. 19. The
plaintiff does not dispute that the factual basis for the five
EEOC complaints and the BADGE lawsuit are "identical to those
filed by Plaintiff in the instant action." Defs.' Mot. at 7. The
plaintiff also filed a seventh EEOC charge, F-97-5073, on
November 3, 1997. Defs.' Mot., Ex. 12; Defs.' Mot., Ex. 19.
On December 4, 2000, the DOJ's Complaint Adjudication Office
examined the claims in F-97-5049 and F-97-5073 and concluded that
"the evidence does not support complainant's claim that he was
discriminated against because of his race or prior EEOC
activity." Defs.' Mot., Ex. 12. The plaintiff appealed the
agency's decision, but on May 30, 2002, the Equal Opportunity
Commission ("EEOC") affirmed the DOJ's decision. Defs.' Mot., Ex.
19. On September 6, 2002, the EEOC denied the plaintiff's request
for reconsideration and notified the plaintiff of his right to
file a civil action. Defs.' Mot., Ex. 20.
B. Procedural History
The plaintiff filed this civil action on September 3, 2002, and
he amended his complaint on August 11, 2003. In contrast to the fifth and sixth EEOC
charges,*fn1 the plaintiff in this action alleges that the
defendant subjected him to a hostile work environment throughout
his 26-year*fn2 career at the FBI. The plaintiff claims that
the hostile work environment led to his constructive discharge.
Am. Compl. ¶¶ 19. Approximately a month after the plaintiff
amended his complaint, the defendants filed a motion to dismiss,
arguing that the plaintiff failed to exhaust his administrative
remedies. In its January 12, 2004 memorandum opinion, the court
declined to dismiss the action because at least one of the
alleged acts took place within the statutory period. The court,
however, emphasized that it was not expressing any opinion as to
whether the plaintiff had proven that an actionable hostile
environment existed. The court now turns to the defendants'
motion for summary judgment.
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense
and, therefore, affect the outcome of the action. Celotex,
477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and
accept the nonmoving party's evidence as true. Anderson,
477 U.S. at 255. A nonmoving party, however, must establish more than
"the mere existence of a scintilla of evidence" in support of its
position. Id. at 252. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex,
477 U.S. at 322. By pointing to the absence of evidence proffered by
the nonmoving party, a moving party may succeed on summary
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its
favor. Greene, 164 F.3d at 675. If the evidence "is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (internal
citations omitted). B. The Court Grants the Defendants' Motion for Summary Judgment
The defendants argue that the plaintiff "voluntarily
relinquished the right to bring any Title VII claims" against
the FBI when he signed the 1993 and 1998 settlement agreements.
Defs.' Mot. at 6-7 (emphasis in original). The plaintiff, on the
other hand, argues that the 1993 and 1998 settlement agreements
only relinquished his right to bring a claim based on the legal
issues raised in the lawsuits underlying those settlements,
stating that the two settlements only barred his right to bring
renewed claims of "class-wide `disparate impact,'" and
discriminatory non-promotion. Pl.'s Opp'n at 26, 27, 29-30.
Because the terms of the settlement agreements explicitly bar any
future claims based on the facts underlying the complaints, the
court concludes that the plaintiff's claims are barred by res
1. Legal Standard for Res Judicata
"The doctrine of res judicata prevents repetitious litigation
involving the same causes of action or the same issues." I.A.M.
Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946
(D.C. Cir. 1983). Res judicata has two distinct aspects claim
preclusion and issue preclusion (commonly known as collateral
estoppel) that apply in different circumstances and with
different consequences to the litigants. NextWave Pers. Commc'n,
Inc. v. Fed. Commc'n Comm'n, 254 F.3d 130, 142 (D.C. Cir. 2001)
(citing id.); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C.
Cir. 1983). Under claim preclusion, "a final judgment on the
merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action." Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C.
Cir. 2002) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).
Under issue preclusion or collateral estoppel, "once a court has
decided an issue of fact or law necessary to its judgment, that
decision may preclude relitigation of the issue in a suit on a different cause of
action involving a party to the first case." Yamaha Corp. of Am.
v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting
Allen, 449 U.S. at 94). In short, "claim preclusion forecloses
all that which might have been litigated previously," while issue
preclusion "prevents the relitigation of any issue that was
raised and decided in a prior action." I.A.M. Nat'l Pension
Fund, 723 F.2d at 949; Novak, 703 F.2d at 1309. In this way,
res judicata helps "conserve judicial resources, avoid
inconsistent results, engender respect for judgments of
predictable and certain effect, and ? prevent serial
forum-shopping and piecemeal litigation." Hardison v.
Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); see also
Allen, 449 U.S. at 94.
2. The Plaintiff's Claims are Based on Conduct Occurring Before
The plaintiff argues that "[t]he issues presented in this
hostile work environment claim are totally different from those
presented in the [1993 and 1998] agreements." Pl.'s Opp'n at 26.
According to the plaintiff, the legal issue in the 1993 BADGE
agreement was "class-wide `disparate-impact,'" Id. at 26, and
the legal issue in the 1998 settlement agreement was "solely
discriminatory promotion." Id. at 27. The plaintiff further
submits that the defendant is using the settlement agreements "as
a snare for plaintiff and [to] deny him the chance to have his
claim judged on the merits." Id. at 41.
a. The 1993 BADGE Settlement Agreement
The 1993 court-approved settlement was signed on October 14,
1993. Id. at 30-31. According to the Mediation Settlement
Agreement, the settlement "resolved a number of allegations of
discrimination against black Special Agents in the FBI's
employment policies and practices." Mediation Settlement
Agreement at 1. Specifically, signatories to the 1993 BADGE settlement did not waive any retaliation claims that might arise
subsequent to the settlement's signing. Id. at 57. The
plaintiff class, however, did waive claims of "disparate impact . . .
for which relief was awarded." Id.
Moreover, the parties signed a settlement agreement amendment,
which was approved by the Judge Hogan on May 17, 2000, and which
applied retroactively to October 14, 1998. Id. The amendment to
the BADGE settlement agreement also contained a waiver provision
releasing the defendants "from any additional liability based on
any and all claims and causes of action which have been, could
have been or will be asserted in this case." Id. at 13. The
amendment to the agreement additionally states that it
constitutes "full and final satisfaction of any and all claims
and demands, of whatever nature, the plaintiffs, or the plaintiff
class . . . had or may hereafter acquire against the defendant . . .
with respect to the incidents, claims or circumstances giving
rise to and/or alleged in the above-captioned action." Id. The
purpose of the amended settlement agreement was to "resolve all
outstanding class issues related to promotions, discipline, and
performance evaluations raised by plaintiffs in mediation."
Notice of Proposed Mediation Settlement Agreement at 4.
The plaintiff does not dispute that the factual basis for the
BADGE lawsuit and the subsequent settlement is the same as the
factual basis for the instant action. The plaintiff, however,
argues that the instant action involves a different legal claim.
Pl.'s Opp'n at 26-27. Specifically, the plaintiff contends that
the BADGE settlement and the amended settlement only addressed
disparate impact claims, whereas his current action is a hostile
work environment claim. Id. But, legal arguments based on the
same facts as a previously-adjudicated claim are barred by res
judicata. Apotex, Inc. v. Fed. Drug Admin., 393 F.3d 210,
218-19 (D.C. Cir. 2004) (explaining that res judicata bars a party from raising a new
legal argument when there are no new facts). The plaintiff,
moreover, ignores the plain language of the BADGE settlement and
the subsequent amendment, which releases the defendant from
liability based on any claim or cause of action that could have
been asserted during the mediation process. Accordingly, the
legal claims stemming from the conduct alleged in the BADGE
lawsuit are barred by res judicata.
b. The 1998 Settlement Agreement
The plaintiff asserts that the 1998 settlement agreement, which
settled the claims in Civil Action 93-2234, "did not remotely
refer to any other actions that could have been brought on or
before June 9, 1998." Pl.'s Opp'n at 28-29. The language on the
face of the agreement, however, contradicts the plaintiff's
statement.*fn3 The 1998 settlement agreement states that the
plaintiff agreed "to release and forever discharge" the defendant
from liability for any claim "which were or could have been
raised on or before the effective date" of the agreement. Pl.'s
Opp'n, Ex. EE ("1998 Settlement Agreement") at 2. According to
the settlement agreement, the release applies to new claims
"based on the allegations or the subject matter of: (i) this
action, including, but not limited to, claims made pursuant to
Title VII . . ., and (ii) any related allegations or claims . . .
regarding actions by the Agency." Id. In short, the 1998
settlement agreement provides for a broad release of all claims
related to the defendants' alleged discriminatory practices
before 1998. Neither does the agreement reserve the plaintiff's
right to bring a suit arguing a different legal theory that is
based on the same facts. This court repeats the reasoning expressed by the D.C. Circuit and determines that it
has "no cause to read the parties' settlement as something less
than it purports to be." Elmore v. Shuler, 787 F.2d 601, 602
(D.C. Cir. 1986) (holding that a settlement releasing the
defendants from all liability in a civil rights action precluded
a subsequent action to collect attorneys' fees in that action).
Furthermore, the complaint filed in Civil Action 93-2234 also
alleged race discrimination and retaliation for the plaintiff's
participation in the BADGE lawsuit, as well as constructive
discharge. Civil Action 93-2234, Compl. ¶¶ 1, 38, 45. In that
suit, the plaintiff alleged that he was not selected for a
position on the basis of race and as retaliation for his
participation in the BADGE lawsuit. Specifically, the plaintiff
Defendant's FBI Management instituted an unlawful
systemwide retaliatory program against him based
on his race with the unlawful purpose being to
force his removal from the FBI and to destroy his
upward mobility within the Defendant. The unlawful
artifice has been continuous since its inception and
continues in full force and affect to this date.
Id. at ¶ 45. (emphasis added). To paraphrase, beginning in
1993, the plaintiff alleged the same acts that he complains of in
the instant action, that is, discriminatory retaliation and
Because the plaintiff's claims
in the instant action are primarily based on the discriminatory
and retaliatory events alleged in the complaint underlying the
June 1998 settlement,*fn5
and are claims that could have been raised
before the settlement agreement became effective, the court finds
that his claims are barred by res judicata.
The only events that the plaintiff alleges subsequent to the
signing of the settlement agreement was signed are: (1) the
transfer of a subordinate out of the plaintiff's unit, Am. Compl.
at 65, and (2) the defendant's request that the plaintiff submit
for a fitness for duty examination. Pl.'s Opp'n at 12. These
events, however, do not rise to the level of seriousness required
for a hostile work environment claim, and are, accordingly,
insufficient to make out a constructive discharge claim.*fn6
Rooney v. Koch Air, LLC, 410 F.3d 376, 383-83 (7th Cir. 2005)
(holding that to prevail on a claim of constructive discharge, an
employee must show both that a hostile work environment existed
and `that the abusive working environment became so intolerable
that her resignation qualified as a fitting response'") (citing
Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)).
First, the plaintiff does not allege that his supervisors
transferred the subordinate out of the plaintiff's unit or that
they requested a fitness for duty medical examination for a discriminatory reason. George v. Leavitt, 407 F.3d 405 (D.C.
Cir. 2005) (explaining that a work environment is hostile when it
"`is permeated with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment'") (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)
Second, the decision to transfer an employee is a business
decision, and does not constitute an adverse employment action.
Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002)
(affirming the district court's determination that a supervisor's
personnel decisions about the plaintiff's staff, including
transferring some of the plaintiff's staff to another division,
did not constitute an adverse employment action and cannot
support a finding of discrimination or retaliation); see also
Mungin v. Katten Muchin & Zavis, 116 F.3d 1556-57 (D.C. Cir.
1997) (eschewing "judicial micromanagement of business
Third, the defendants' request that the plaintiff submit to a
fitness for duty examination does not create a hostile work
environment. Not only is the defendants' request justified by the
plaintiff's lengthy leave of absence, but the plaintiff has not
offered any evidence that this request violated the defendants'
sick leave policy, or that other employees taking lengthy leaves
of absence were treated any differently. McGill v. Munoz,
203 F.3d 843, 848 (D.C. Cir. 2000) (holding that no reasonable jury
could find that the defendant employer discriminated against the
plaintiff because the plaintiff did not offer any direct or
circumstantial evidence that her employer's request for medical
documentation justifying her absences was discriminatory);
Feliciano de la Cruz v. El Conquistador Resort and Country
Club, 218 F.3d 1, 5 (1st Cir. 2000) (stating that summary
judgment is appropriate where "the non-moving party `rests merely
upon conclusory allegations, improbable inferences, and
unsupported speculation'") (citing Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Fourth, a plaintiff alleging constructive discharge must leave
his employment within a "reasonable time" after suffering an act
of discrimination. Smith v. Bath, 943 F.2d 164, 167 (1st Cir.
1991); see e.g., Landrau-Romero v. Banco Popular de Puerto
Rico, 212 F.3d 607, 613 (1st Cir. 2000) (holding that a
plaintiff who resigned seven months after the alleged
discriminatory acts could not claim constructive discharge);
Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1317
(11th Cir. 1989) (affirming the district court's holding that the
defendant did not constructively discharge the plaintiff when the
last alleged act of harassment occurred on March 27, 1985 and the
plaintiff resigned on April 8, 1985); Jett v. Dallas Indep. Sch.
Dist., 798 F.2d 748, 756 (5th Cir. 1986) (holding that a
plaintiff who resigned six months after the alleged
discriminatory conduct did not make out a claim for constructive
discharge). Although the plaintiff's last day on the job was
February 4, 1998, Defs.' Reply at 13-14, he did not resign until
well over a year later, Am. Compl. ¶ 15. Accordingly, the two
allegations that are not barred by res judicata fail to set forth
sufficient facts to support a hostile work environment or
constructive discharge claim.
For the foregoing reasons, the court grants defendants' motion
for summary judgment. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 25th day
of August 2005.
© 1992-2005 VersusLaw Inc.