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September 30, 2005.

ALBERTO GONZALES et al. Defendants.

The opinion of the court was delivered by: RICHARD ROBERTS, District Judge


Pro se plaintiff Gilbert Graham, a 54-year-old African-American retired Special Agent for the Federal Bureau of Investigation ("FBI"), filed an amended complaint against the Attorney General*fn1 and other federal officers and agencies, alleging that his former federal employer unlawfully discriminated against him based on his race and age, retaliated against him for filing complaints of discrimination by creating a hostile work environment through continuing violations, violated his Fifth Amendment equal protection and due process rights, and constructively discharged him. Defendants moved to dismiss plaintiff's claims*fn2 because they are either barred by res judicata, barred by plaintiff's failure to exhaust mandatory administrative remedies, or fail to state a claim. Defendants seek in the alternative judgment as a matter of law. Because Counts One, Two, Four and Five rely on the same nucleus of facts as did claims already raised and litigated in a prior action, those counts will be dismissed as precluded under the doctrine of res judicata. Because plaintiff did not exhaust his administrative remedies with respect to the two claims of constructive discharge, Counts Six and Seven will be dismissed. Because plaintiff has sufficiently stated a new and separate claim for hostile work environment in retaliation for his participation in protected activities that does not arise from the same nucleus of facts that supported the claims in the prior litigation, defendants' motion as to Count Three will be denied.


  Plaintiff worked as a Special Agent for the FBI for 25 years in the Washington Field Office. He asserts that during his career in that office, he "was unjustly singled out for investigation, interrogation, unlawfully sanctioned, subjected to a hostile work environment and constructively discharged solely because he is an African American, his participation in protected activities and his age." (First Am. Compl. ("Am. Compl.") ¶ 1.) Graham filed an EEO complaint against his employer in 1985, and then a civil action in 1992, alleging disparate treatment and disparate impact racial discrimination and retaliation. (Id. ¶ 92.) He also actively participated in a class action against his employer filed in 1993. (Id.) In 1999, Graham was the subject of an investigation by the Intelligence Oversight Board ("IOB"), an action that plaintiff alleges was racially discriminatory as well as procedurally defective. (Id. ¶¶ 28-39, 67.) Graham filed an EEO complaint about the IOB episode in November 2000. (Id. ¶ 10; Def.'s Mem. in Supp. of Mot. to Dismiss, or in the Alt., for Summ. J. ("Def.'s Mem.") at 3.) The IOB investigation resulted in a determination to suspend Graham for three days without pay. Graham appealed the punishment by letter dated April 2, 2002 (Am. Compl. ¶ 67; Def.'s Mem. Ex. 6.), and filed a second EEO complaint alleging race and age discrimination. (Am. Compl. ¶ 12; Def.'s Mem., Ex. 7.) The discipline was reduced to an official letter of censure by letter dated May 22, 2002. (Am. Compl. ¶ 69; Def.'s Mem. at 3 n. 3 & Ex. 6.) Soon thereafter, Graham complained to the Justice Department's Office of Inspector General about what he viewed as mismanagement and abuse of authority reflected in his workload assignment and the conduct of the IOB investigation. In addition, he reported unauthorized use of electronic surveillance relating to a public corruption investigation. (Am. Compl. ¶ 72.)

  In June 2002, Graham filed a civil action in this court, alleging that the agency's handling of the IOB investigation and determination violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 706 (2000) and his Fifth Amendment equal protection and due process rights. See Graham v. Ashcroft, No. Civ. A. 02-1231 (ESH) (D.D.C. June 21, 2002) ("Graham I") (Complaint). After filing the Graham I complaint, Graham requested administrative leave in September 2002 to address matters related to his April 2002 EEO complaint, a request defendants used to scrutinize Graham's time and attendance history, but did not grant. (Am. Compl. ¶ 71(a).) On November 13, 2002, Graham filed another EEO complaint, adding mental harassment to his list of grievances, and identifying November 8, 2002 as the date of the most recent act in support of that claim. (Def.'s Mem. at 3 & Ex. 8.) Two weeks later, the court dismissed Graham I with prejudice, finding that neither his APA nor his Fifth Amendment claims were viable. See Graham I, 2002 WL 32511002 (D.D.C. Nov. 20, 2002).*fn3 In January 2003, Graham was transferred to another squad and assigned a bureau vehicle "with an inoperable door locking mechanism, an inoperable heating and air conditioning system, a dead battery, very high mileage and delinquent parking tickets," a transfer and assignment plaintiff alleges to be retaliatory. (Am. Compl. ¶ 71(b).) Plaintiff asserts that in 2003, the FBI threatened to prosecute him for the unauthorized disclosure of classified information (id. at ¶ 71(c)). In response, plaintiff alleged that the threats were made to impede an official proceeding and requested that the Justice Department's Office of Professional Responsibility ("OPR") investigate. (Id. at ¶ 74.) Plaintiff met with OPR staff in July 2003 to review his allegations and other complaints — a meeting which, according to plaintiff, "quickly turned into a hostile interrogation and threats of administrative action [that could be] taken against the plaintiff." (Id. at ¶ 76.) Plaintiff retired from the FBI on September 3, 2003 and filed the complaint in this action on September 22, 2003.

  Count One alleges that defendants discriminated against him based on his race in violation of Title VII by assigning him a larger caseload than white agents received, targeting him for the IOB investigation and then unduly punishing him, and subjecting him to an unwarranted investigation by the FBI's OPR. (Am. Compl. ¶ 81.) Count Two alleges that defendants assigned him a larger caseload than younger agents received, investigated him for purported IOB violations influencing his decision to retire, and notified him that defendants intended to conduct an OPR investigation six days before his fiftieth birthday, all in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a. (Am. Compl. ¶ 88.) Count Three, expressly alleged as a continuing violation, charged defendants with retaliating against him for his participation in protected activities by creating a hostile work environment when they subjected him to undue scrutiny in response to his request for administrative leave yet never acted on the leave request, assigned him a defective bureau car and threatened him with sanctions for using unclassified information in other litigation. (Am. Compl. ¶¶ 2, 71(a), 92-93.) Count Four claims that defendants violated plaintiff's Fifth Amendment equal protection rights in their IOB and OPR investigations by targeting black employees, failing to give him the right to explain his position while giving white agents the opportunity to explain theirs, unduly harshly punishing him, and threatening to prosecute him for exercising his rights. (Am. Compl. ¶¶ 98-99.) Count Five alleges that in barring plaintiff from explaining his position during the IOB investigation, and failing to follow their internal FBI regulations, defendants violated plaintiff's Fifth Amendment liberty interests and procedural due process rights. (Am. Compl. ¶¶ 106-07.) Count Six alleges that plaintiff was compelled by the hostile environment to take early retirement, five years before plaintiff's mandatory retirement date in 2007. (Am. Compl. ¶¶ 112-114.) Count Seven alleges that defendants' prior acts of retaliation compelled plaintiff to take early retirement to avoid further retaliation for his involvement in protected activities and whistle-blowing. (Am. Compl. ¶¶ 116-118.)

  Defendants have moved to dismiss all claims, arguing that some of plaintiff's claims are precluded by the doctrine of res judicata because of the disposition in Graham I, that some are barred by plaintiff's failure to exhaust his mandatory administrative remedies, and that any remaining claims fail to state a claim upon which relief may be granted or entitle defendants to judgment as a matter of law. DISCUSSION


  The doctrine of res judicata is designed to prevent both repetitive and piecemeal litigation and subsumes both the doctrine of issue preclusion and the doctrine of claim preclusion. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984). The goal of both forms of preclusive effect are the same: to promote the finality of judicial determinations, to foster reliance on judicial decisions by minimizing the possibility of inconsistent decisions, to conserve judicial resources, and to spare adversaries the vexation and expense of redundant litigation. See Montana v. United States, 440 U.S. 147, 153 (1979). Both forms of preclusion apply to this case.

  A. Issue Preclusion

  "Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided." Migra, 465 U.S. at 77 n. 1 (citation omitted). "[O]nce an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits [even if it is] based on a different cause of action involving a party to the prior litigation." Montana, 440 U.S. at 153. There are three elements required to establish a preclusive effect of a prior determination of an issue: First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily decided by a court of competent jurisdiction in that prior case. . . . Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination.

 Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) (citations and footnote omitted).

  Issue preclusion operates in this case to bar consideration of plaintiff's Fifth Amendment equal protection (Count Four) and due process (Count Five) claims. Counts Four and Five in this action present the same constitutional issues arising from the same facts that were raised and litigated by the parties to a final judgment on the merits by a court of competent jurisdiction in Graham I. There, the court determined that plaintiff's treatment and discipline with the IOB episode implicated neither a liberty nor a property interest of constitutional dimensions, and plaintiff had not been wrongly deprived of either without due process. See Graham I, 2002 WL 32522002, at *4-5. That decision disposed of the issue presented in Count Five in this case. Similarly, the issue of whether plaintiff's Fifth Amendment right to equal protection had been violated was litigated and resolved in Graham I. As to that issue, the court determined that plaintiff could not be heard on a Fifth Amendment equal protection claim for an employment grievance against his federal employer, because ...

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