Opinion
Civil Action No. 00-279, Section "N"
May 4, 2000
ORDER AND REASONS
Before the Court is Defendant's Motion to Dismiss. For the following reasons, Defendant's Motion to Dismiss is CONVERTED to a Motion for Summary Judgment and GRANTED.
A. BACKGROUND
On January 28, 2000, Plaintiff Ronald E. Coblentz flied suit in this Court against Daniel C. Glickman, the Secretary of the Department of Agriculture. Mr. Coblentz, an employee at the Department of Agriculture's National Finance Center ("NFC"), alleges that ever since he filed an EEO complaint of age discrimination and spoke out against the NFC at a USDA "listening session," he has been the victim of "an ongoing campaign of reprisal" by Defendant. Complaint ¶ VII.
Specifically, Mr. Coblentz alleges that Defendant's employees denied him a promotion, delayed his promotion, transferred some of his duties to another employee and cut his overtime. See Complaint ¶¶ IX, XI, XII and XV-XX. Although his Complaint is difficult to construe, Mr. Coblentz appears to allege that these activities took place in 1997. See Complaint ¶ IX (alleging that "the date of the discrimination was June, 1997").
As Defendant points out, this is not the first time Mr. Coblentz has complained of these actions. Mr. Coblentz filed three EEO complaints and one complaint with this Court. The latter complaint formed the basis of Civil Action No. 93-3465 and, like the complaint in the instant case, was brought against Secretary Glickman. The case was referred to United States Magistrate Judge Sally Shushan, who granted the Secretary's motion for summary judgment and entered judgment against Mr. Coblentz. See Order and Reasons, Civil Action No. 98-3645 (E.D. La, October 13, 1999). Magistrate Shushan held, inter alia, that Mr. Coblentz had "presented no evidence whereby the court could draw a causal link between the connected activity (the filing of the initial EEO complaint in 1992), and any alleged adverse employment action occurring in 1997." Id. at 12. More specifically, Magistrate Shushan noted that Mr. Coblentz had "produced nothing other than rank speculation to substantiate his claims of retaliation," and that the "causal connection between the operative events [were] simply too attenuated in both time and manner to establish a claim for retaliation." Id. at 12-13.
The instant case was also referred to Magistrate Shushan, but the parties advised her that they did not wish to consent to trial by a Magistrate Judge.
Based on Magistrate Shushan's ruling in Civil Action No. 98-3645, Secretary Glickman contends that Mr. Coblentz's claims in the instant case are precluded and should be dismissed. Alternatively, he argues that Mr. Coblentz's claims should be dismissed because he failed to wait the requisite 180 days from lodging his formal EEO complaint before filing suit in federal court.
B. LAW AND ANALYSiS 1. Res Judicata
Secretary Glickman brings his Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (2). Although these rules certainly apply to some of the Secretary's arguments, Magistrate Shushan dismissed Mr. Coblentz's retaliation claims on the merits, not for lack of personal or subject matter jurisdiction. Thus, Secretary Glickmans res judicata theory is in reality an argument that Mr. Coblentz has failed to state a claim upon which relief can be granted, and the Court finds Rule 12(b)(6) to be the appropriate vehicle for this facet of Defendant's motion. Compare Production Supply Co., Inc. v. Fry Steel Inc., 74 F.3d 76 (5th Cir. 1996) (defendant brought merit-based res judicata challenge under Rule 12(b)(6)), with Deckert v. Wachovia Student Fin. Servs., Inc., 963 F.2d 816 (5th Cir. 1992) (defendant brought lack-of-personal-jurisdiction-based res judicata challenge under Rule 12 (b)(2)). Because Secretary Glickman has asked the Court to consider Plaintiffs prior federal court complaint, Plaintiffs EEO complaints, the USDA EEC Complaint Final Decision, and Magistrate Shushan's ruling, and because Mr. Coblentz has submitted an appellate brief from the prior case, the Court shall convert Defendant's Motion to Dismiss on res judicata grounds into a Motion for Summary Judgment pursuant to the last sentence of Federal Rule of Civil Procedure 12(b). See Burns v. Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir. 1998), reh'g denied (1998) ("When matters outside the pleadings are presented to and not excluded by the district court, the district court must convert a motion to dismiss into a motion for summary judgment."). Summary judgment is proper only where, viewing the evidence in the light most favorable to the nonmoving party, the court determines that there is no genuine issue of material fact and judgment is proper as a matter of law. See In re Intelogic Trace, Inc., 200 F.3d 382 (5th Cir. 2000) (applying summary judgment standard in the context of res judicata argument); FED. R. Civ. P. 56(c).
The Court finds that the parties had sufficient notice that the Court would convert the motion to dismiss into a motion for summary judgment. Although Defendant encouraged the Court not to do so, his rationale for not converting the motion was tied entirely to his subject matter jurisdiction argument, see Defendant's Support Memorandum p. 4 n. 5, and he submitted abundant evidence outside the pleadings. Moreover, Plaintiff submitted evidence outside the pleadings, which the Court has considered. This fact alone mandates conversion. See Burns, 139 F.3d at 517 (consideration of outside evidence submitted by non-moving party mandates conversion).
For a prior judgment to bar an action on the basis of res judicata, (1) the parties must be identical in both suits, (2) the prior judgment must have been rendered by a court of competent jurisdiction, (3) there must have been a final judgment on the merits and (4) the same cause of action must be involved in both cases. See Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 559 (5th Cir. 1983) (en banc) (applying res judicata to employment discrimination claim). Here, the parties do not contest that the first and second elements are satisfied, as the parties were identical in both suits, and Magistrate Shushan had jurisdiction over the prior case. Similarly, the parties appear to agree, and the Court finds, that the fourth element is satisfied, as both cases involve a claim of Title VII retaliation. At issue is the third element, whether Magistrate Shushan reached the merits of all of Mr. Coblentz's claims of retaliation. According to Mr. Coblentz, Magistrate Shushan "never made any type of statements or analysis in this retaliation claim. . . ." See Plaintiffs Opposition Memorandum p. 2.
Mr. Coblentz is wrong. As noted above, Magistrate Shushan expressly granted summary judgment against Mr. Coblentz on his retaliation claims. Those claims included allegations of "nonselection for promotional positions; intentional delays in performing a desk audit after it was recommended that plaintiff should be promoted to a GS-13; taking away plaintiffs job duties and not telling him; . . . giving plaintiff a job description and changing the job duties immediately without informing plaintiff; . . . other acts of retaliation . . .," see Civil Action No. 98-3645 Complaint ¶ IX, and denial of overtime. See Order and Reasons p. 5. The ambiguities in Mr. Coblentz's Complaint notwithstanding, these claims overlap exactly with the claims presented in the instant case.
This paragraph is not expressly labeled "IX", but that appears to have been Plaintiffs intention.
The Court notes that Mr. Coblentz's reference to " this retaliation claim" might be an attempt to distinguish between his various EEO complaints. As noted above, Mr. Coblentz has alleged several instances of retaliation, each of which individually might be considered a "claim," and has also brought three EEO complaints, which might be referred to loosely as EBO "claims." In her Order and Reasons, Magistrate Shushan did not expressly state in what sense she was using the word "claim," and there is some ambiguity in the opinion. For example, while in the fact section she sets forth each alleged incident of retaliation, she later refers to "Plaintiffs First and Second Retaliation Claims." See Order and Reasons p. 12. This latter reference suggests that she was dismissing only the allegations set forth in Mr. Coblentz's first and second EEO complaint, but not in his third. Thus, Mr. Coblentz might be arguing that there has been no final judgment regarding his third EEO complaint.
The Court has had some trouble deciphering both Plaintiffs Complaint and his Opposition Memorandum, the latter of which is just over a page long and is filled with typographical errors, vague arguments, improper word choice and confusing sentence structure.
Even this reading of Mr. Coblentz'S argument does not aid his cause. The claims set forth in both Mr. Coblentz's third EEO complaint and in the instant case arise from the same transaction as the claims set forth in Mr. Coblentz's second EEO complaint, i.e. the alleged 1997 campaign of retaliation. In fact, his claims here and in his third EEO complaint are largely, arguably wholly, identical to those set forth in his second EEO complaint, and, to the extent they differ, there is no reason why they should not have been brought in the earlier suit. Thus, even if Magistrate Shushan only considered the second EEO complaint, her decisions relative to those claims preclude consideration of Mr. Coblentz's subsequent claims, both in the third EEO complaint and in the instant case.
Any difference in the claims appears to be the result of a change in phraseology, not substance.
Because he brings the same claims in the instant case as he brought in Civil Action No. 98-3645, the Court is left with the distinct impression that he is attempting a de facto appeal of Magistrate Shushan's rulings. However, Mr. Coblentz himself brings to the Court's attention that Magistrate Shushan's decision is presently on appeal to the Fifth Circuit, de jure. Mr. Coblentz should wait for the results of his appeal rather than attempting to pursue the same claims in alternative fora.
Therefore, the Court finds that there has been a final judgment in an earlier case on the merits of the claims presented in this case. Accordingly, the claims in this case are precluded.
2. Lack of Jurisdiction
Secretary Glickman presents two jurisdictional attacks. First, he argues that the Court lacks personal jurisdiction over the National Finance Center because the NFC cannot be made defendant in a Title VII suit. Because Mr. Coblentz admits that he has not attempted to make the NFC a defendant, and because the Court's records indicate that the NFC has not been made a defendant, this issue is moot.
Second, Secretary Glickman argues in the alternative to his res judicata argument that the Court lacks subject matter jurisdiction over Mr. Coblentz's retaliation claim because Mr. Coblentz failed to exhaust his administrative remedies as to his third EEO complaint. Because the Court finds that Magistrate Shushan's consideration of the second EEO complaint should be given res judicata effect as to all subsequent claims arising from the same transaction, including those in the third EEO complaint, it is immaterial whether Mr. Coblentz exhausted his administrative remedies as to his third EEO complaint.
C. CONCLUSION
The Court finds that Plaintiffs claims in the instant suit are barred by Magistrate Shushan's judgment in Civil Action No. 98-3645. See Order and Reasons, Civil Action No. 98-3645 (E.D. La. October 13, 1999).
For the reasons set forth above,
IT IS ORDERED that Defendants Motion to Dismiss is CONVERTED to a Motion for Summary Judgment and GRANTED.