JOHN C. NIVISON, Magistrate Judge.
In this action, Plaintiff Stacey Hagerman alleges several claims regarding her employment with the Transportation Security Administration of the United States Department of Homeland Security (TSA), which employment Defendant terminated in October 2012.
The matter is before the Court on Defendant's Motion to Dismiss and Change Track Assignment (ECF No. 9), through which motion Defendant asserts Plaintiff's Title VII claims are precluded by the doctrine of res judicata and that Plaintiff's remaining claim under the Civil Service Reform Act should proceed exclusively on the administrative track. As part of her response to the motion to dismiss, Plaintiff filed a motion to amend her complaint (ECF No. 18), which motion is also before the Court.
Following a review of the parties' submissions and after consideration of the parties' arguments, I grant the motion to amend and recommend the Court deny without prejudice Defendant's motion to dismiss and change track assignment.
Plaintiff alleges adverse employment actions against her following her complaints that her supervisor — through reprimands and insults, letters of counseling, letters of discussion, and one or more short-term suspensions — was subjecting her to a hostile work environment based on her gender and in retaliation for her engagement in a protected Equal Employment Opportunity (EEO) activity. On July 20, 2012, Plaintiff complained of sex discrimination and retaliation to the TSA's EEO office, which opened an investigation. (Am. Compl. ¶ 57.)
On September 13, 2012, Plaintiff's supervisor, Assistant Federal Security Director Kelly, proposed that Plaintiff be removed from her position. (Am. Compl. ¶ 58.) Assistant Director Kelly's supervisor, Federal Security Director Dyer, considered the proposal and, on October 9, 2012, issued a decision that terminated Plaintiff's employment. (Id. ¶ 59.)
According to Plaintiff, on September 27, 2012, in the brief period between the removal proposal and her actual removal, Plaintiff filed a formal complaint with the TSA's EEO office. (See Complaint in Hagerman v. Johnson, No. 2:13-cv-00446-JAW ("Hagerman I"), ¶ 5.) According to the Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security (the "Department"), which issued a final agency decision adverse to Plaintiff's contentions on September 9, 2013, Plaintiff filed her formal complaint on October 10, 2012, the day after her removal. (Final Agency Decision, ECF No. 9-1 (this docket).) In its Final Agency Decision, the Department noted that TSA, not Plaintiff, requested the final agency decision, which request TSA made on July 1, 2013. (ECF No. 9-1, PageID # 61.) Among the arguments the Department considered was Plaintiff's contention that certain discrete acts were part of the TSA's "`mounting plan' to terminate her employment." (Id., PageID # 65.) In its decision, the Department limited its review to the discrete acts imposed in advance of Plaintiff's removal and to the issue of whether the combined pre-removal record supported Plaintiff's claim of a hostile work environment.
According to her pleadings in this case, Plaintiff also filed a "mixed case" appeal and complaint of discrimination with the Merit System Protection Board (MSPB) in October 2012. Although the mixed case evidently arose out of the same facts and circumstances as the EEO matter, the mixed case concerned Plaintiff's removal from employment. (See Complaint, ECF No. 1, ¶ 7; Amended Complaint, ECF No. 18-1, ¶ 7.) The MSPB exercised jurisdiction over the mixed case, and Plaintiff received an initial adverse decision from the MSPB administrative judge on June 2, 2014. On appeal, the MSPB affirmed the decision of the administrative judge. Plaintiff then elected to pursue an administrative appeal with the Equal Employment Opportunity Commission's Office of Federal Operations, which on January 14, 2016, denied Plaintiff's appeal. (OFO Decision, ECF No. 9-2.)
On December 3, 2013, following her receipt of the Department's final agency decision on her first administrative complaint, and while her mixed case was pending before the MSPB administrative law judge, Plaintiff, proceeding pro se, filed a civil action in this Court against Defendant. In her complaint, Plaintiff alleged sex discrimination in the terms, conditions, and privileges of employment, including the creation of a hostile work environment based on sex. Plaintiff also alleged retaliation based on her complaint of discrimination and the filing of her July 2012 administrative complaint with the EEO office. Plaintiff asserted all of her claims under Title VII of the Civil Rights Act of 1964. (Complaint in Hagerman I, ¶¶ 53, 62, 70, 76.)
Plaintiff did not describe her removal from employment in her complaint. Plaintiff, however, complained of "adverse employment actions," and she included among her losses the future loss of income and benefits. (Id. ¶¶ 70, 72.) In support of her hostile work environment claim, Plaintiff similarly complained of adverse employment actions, "loss of her employment for a period of time," and loss of future income and benefits. (Id. ¶¶ 76, 78, 79.)
On August 15, 2014, Plaintiff filed a motion to stay proceedings in Hagerman I. (ECF No. 14.) In the motion to stay, Plaintiff explained that the administrative judge had recently issued a decision on her administrative claim before the MSPB arising from her removal from employment, and that she was pursuing an appeal of the administrative judge's decision with the MSPB. In her motion to stay, Plaintiff asserted that a final decision was anticipated and that she intended to join her claim regarding her termination with her other claims in Hagerman I. (Id. ¶¶ 5, 9.) Plaintiff represented that the MSPB appeal involved "the same factual occurrences and legal questions" as those raised in Hagerman I, and that the issue of her termination should be joined "[i]n view of the near complete identity of the factual and legal questions at issue in the two claims." (Id. ¶¶ 10, 12.)
In response to the motion for stay, Defendant acknowledged that the two matters involved significant overlap, but disagreed "that the appeal currently pending before MSPB involve[d] the same factual occurrences and legal questions that [were] at issue" in Hagerman I. (ECF No. 15 at 2, ¶ 4.) Defendant consented to the motion to stay and indicated that, if the Court granted the motion and consolidated Plaintiff's existing and anticipated lawsuits, it would want Plaintiff to forego discovery concerning the then-pending claims because Plaintiff had not sought discovery in the pending action and requested the stay approximately one week before the close of the discovery period. (Id. at 4, ¶ 8(d).)
The Court stayed the matter until November 20, 2014, in anticipation of the MSPB's final decision. (ECF No. 16.) Following a November conference, the Court extended the stay until March 2, 2015. (ECF No. 20.) At a March 5, 2015, conference, Plaintiff informed the Court that she received an unfavorable final decision from the MSPB and that she had filed a further administrative appeal.
Plaintiff filed this action pro se on February 16, 2016. In her complaint, Plaintiff asserts the following claims regarding her employment with Defendant: a Title VII claim of retaliation (Count I), a Title VII claim of disparate treatment based on sex (Count II), and a claim under the Civil Service Reform Act requesting judicial review of the final decision of the MSPB. (ECF No. 1 at 1.)
Plaintiff describes her case as a "mixed-case" appeal and complaint of discrimination arising out of her October 9, 2012, termination from employment. (Id. at 2, ¶ 7a.) Plaintiff asserts that after receiving the final decision of the MSPB, she appealed from that decision to the Equal Employment Opportunity Commission's Office of Federal Operations (OFO), and that on January 14, 2016, the OFO issued her a notice of right to file a civil action. (Id. at 2-3, ¶ 7b.)
In her complaint, Plaintiff describes the same employment history from which her claims in Hagerman I arose, which history involves the alleged adverse treatment by Assistant Federal Security Director Kelly. (Id. ¶¶ 10-59.) Plaintiff also references the October 9, 2012, notice of termination issued by Federal Security Director Dyer. (Id. ¶ 60.)
Defendant informed Plaintiff that her employment was terminated due to a lack of candor in connection with Plaintiff's report regarding a subordinate's Facebook posting of an image of an item in a passenger's bag. (Id. ¶ 62.) Plaintiff apparently did not disclose in her report that the subordinate had shown the image to Plaintiff. (Id. ¶ 67.) Plaintiff contends Defendant's stated reasons for termination were pretextual and were designed to conceal the retaliatory animus toward Plaintiff based on her protected EEO activity. (Id. ¶ 64.)
In response to Plaintiff's complaint, Defendant filed the pending motion to dismiss, in which motion Defendant argues Plaintiff's Title VII claims are barred by the doctrine of res judicata, although Defendant concedes Plaintiff's request for judicial review of the administrative decision can proceed. (Motion to Dismiss, ECF No. 9.) In response to Defendant's motion to dismiss, Plaintiff filed a motion for leave to amend her complaint. In her proposed amended complaint (ECF No. 18-1), Plaintiff deleted former paragraph 9 (which related to her pro se status), and revised former paragraph 92 (now paragraph 91) "to clarify that only the plaintiff's October 9, 2012 removal action is at issue in her claim of disparate treatment sex discrimination." (Motion to amend at 2.) Plaintiff's proposed amended complaint thus can be read to assert Title VII claims limited to the issue of her termination.
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a pleading "once as a matter of course," subject to certain time constraints. However, when a party seeks to amend a complaint more than 21 days after the filing of a responsive pleading, the other party's consent or leave of court is required in order to amend the complaint. Fed. R. Civ. P. 15(a)(2). In such a case, the court is to grant leave to amend "freely" when "justice so requires." Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962).
In this case, Plaintiff filed the motion relatively early in the proceedings, and the proposed substantive modifications to the original complaint are not substantial. The proposed amendments simply confirm that Plaintiff's claim is based on the termination of her employment. Based on Defendant's motion to dismiss, Defendant was aware of the nature of the claim before the amendment. Plaintiff thus is entitled to amend her complaint as requested.
As part of the assessment of Defendant's motion to dismiss, a review of the relevant administrative processes is instructive.
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. §§ 1101 et seq., "establishes a comprehensive framework for evaluating employment actions taken against federal employees." Rodgers v. Perez, 139 F.Supp.3d 67, 71 (D.D.C. 2015). Where discrimination in employment is concerned, the CSRA framework is designed to accommodate proceedings both through the federal equal employment opportunity (EEO) system overseen by the Equal Employment Opportunity Commission (EEOC) and through the federal merit protection system overseen by the Merit System Protection Board (MSPB). Id.
Discrimination in federal employment is prohibited under Chapter 21, subchapter VI of the Civil Rights Act, 42 U.S.C. § 2000e-16 (Title VII). Enforcement of § 2000e-16 is delegated to the Equal Employment Opportunity Commission, which has authority to issue rules and regulations necessary to satisfy its responsibilities. Id. § 2000e-16(b).
The EEO procedures require, inter alia, the employee to file a complaint directly with the employing agency, following an initial counseling session. Id. §§ 1614.105, 1614.106. The complaint must set forth "the action(s) or practice(s) that form the basis of the complaint," and the complaint may be amended "at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint." Id. § 1614.106(c), (d). Thereafter, the employee may also file a motion to amend the complaint with the administrative judge assigned to the matter. Id. § 1614.106(d). Upon the filing of a complaint or amended complaint, the EEOC process begins with an investigation by the employing agency. Id. § 1614.108. The employee can then request a hearing before an administrative judge. Id. § 1614.109. Following a decision by the administrative judge, the agency must take "final action." Id. § 1614.110. The employee may then file a civil action in federal district court or pursue a further administrative appeal before the EEOC.
Significant adverse actions such as discharge or demotion are also subject to protection under the federal merit system.
The appellate procedure before the MSPB and the judicial review process following a decision of the MSPB are set forth at 5 U.S.C. §§ 7701-7703. "Such an appeal may merely allege that the agency had insufficient cause for taking the action under the CSRA; but the appeal may also or instead charge the agency with discrimination prohibited by another federal statute, such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ..." Kloeckner, 133 S. Ct. at 600.
Id. at 601 (emphasis in original).
An employee who is unsuccessful with her mixed case before the MPSB and wants to pursue her mixed case in district court may either file suit in the district court after receiving notice of the MSPB's decision, or ask the EEOC to review the MSPB decision by filing an appeal with the EEOC's Office of Federal Operations before filing in district court.
Federal regulations recognize that an employee may bring a mixed case in two different administrative venues. When an employee wishes to pursue a mixed case, she may begin with an appeal to the MSPB, or she may begin the EEO process by filing a complaint with her agency's EEO office and then appealing an unfavorable final action to the MSPB. 29 C.F.R. § 1614.302; 5 C.F.R. § 1201.154. The employee cannot maintain the same mixed case in both administrative forums and must exhaust her administrative remedies in the forum where she first filed her mixed case. 29 C.F.R. § 1614.302(b); Rodgers v. Perez, 139 F.Supp.3d 67, 71 (D.D.C. 2015).
An employee can and often will commence the EEO process with the employing agency before the agency takes adverse action that would be within the jurisdiction of the MSPB. In other words, an employee often initiates the EEO process before the employee's "mixed case" has accrued for purposes of administrative law.
Whenever an employee initially files an EEO complaint and subsequently experiences an adverse action within the jurisdiction of the MSPB, the question arises as to whether the employee's pending EEO matter merges with or should be merged with the mixed case to avoid splitting the claim at the administrative level.
Id. The Directive underscores the importance of avoiding the fragmentation of claims: "The fragmentation of EEO claims must be prevented at all levels of the complaint process, including pre-complaint EEO counseling." Id. The EEOC further advises "that a proposed action merges with the decision on an appealable matter — for example, a proposed removal merges into the decision to remove." Id.
Management Directive 110 thus provides that a non-mixed case can merge into a mixed case upon an employee's removal from employment. Where a complainant's non-mixed matter is already pending when the adverse action within the jurisdiction of the MSPB occurs, the agency is directed to instruct the complainant of the need to make an election to either proceed with a mixed case complaint before the agency or proceed with a mixed case appeal before the MSPB. 29 C.F.R. § 1614.302(b).
The legal doctrine of res judicata concerns the preclusive effect of prior judgments on claims or issues raised in subsequent litigation. Taylor v. Sturgell, 553 U.S. 880, 892 (2008). "Under the doctrine of claim preclusion, a final judgment forecloses `successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.'" Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). "Issue preclusion, in contrast, bars `successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,' even if the issue recurs in the context of a different claim." Id. (quoting New Hampshire v. Maine, 532 U.S. at 748-49). Defendant argues that Plaintiff's voluntary dismissal of Hagerman I with prejudice bars litigation of the Title VII claims asserted in this case. (Motion to Dismiss at 10.) Defendant, therefore, asserts claim preclusion in support of the motion to dismiss.
"Federal law principles of res judicata govern the preclusive effect of a prior federal court's judgment on a subsequent action brought in federal court." Apparel Art Int'l, Inc. v. Amertex Enters. Ltd., 48 F.3d 576, 582 (1st Cir. 1995). "Federal claim preclusion law bars a plaintiff from litigating claims in a subsequent action that could have been, but were not, litigated in an earlier suit." Silva v. City of New Bedford, 660 F.3d 76, 78 (1st Cir. 2011).
Here, the parties do not dispute that elements 1 and 3 are satisfied.
Id. (internal quotation marks, ellipses, and citation omitted). The transactional analysis, with its focus on whether different causes arise from the same nucleus of operative fact, does more than simply "prevent plaintiffs from `splitting' causes of action"; it "also operates as a kind of common-law compulsory joinder requirement, promoting judicial economy through the consolidation of related claims." Negron-Fuentes v. UPS Supply Chain Sols., 532 F.3d 1, 8 (1st Cir. 2008). Consequently, "[i]n most situations involving federal claims, it is now enough to trigger claim preclusion that the plaintiff's second claim grows out of the same transaction or set of related transactions as the previously decided claim." AVX Corp. v. Cabot Corp., 424 F.3d 28, 31 (1st Cir. 2005). "The implicit rationale is that for the sake of efficiency, all such claims should be brought together, if this is possible." Id.
"The judicial expansion of claim preclusion doctrine ... is still a work in progress." Negron, 532 F.3d at 10 (citing 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4464.1 (2002)). "[C]ompulsory claim ... rules, created by courts outside the framework of the Federal Rules of Civil Procedure, have dangers as well as advantages." Id.
Like private-sector employees, federal-sector employees are entitled to de novo review in federal court of their Title VII claims. Chandler v. Roudebush, 425 U.S. 840, 861-64 (1976). However, "Title VII claims are not immune from res judicata." Czarniecki v. City of Chicago, 633 F.3d 545, 550 (7th Cir. 2011). Plaintiff maintains that res judicata is inapplicable because the termination of her employment, the subject of this action, occurred after the conduct about which she complained in Hagerman I.
The First Circuit Court of Appeals has determined that Title VII employment discrimination actions resolved in district court can preclude later actions filed in district court based on related conduct. In Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d 1 (1st Cir. 2001), the plaintiff alleged that over a multi-year period extending through 1997, his state employer engaged in harassment and failed to promote him due to racial bias. A jury agreed and awarded the plaintiff damages. Id. at 2. Shortly after the district court entered final judgment in 1999, the plaintiff filed a second action in which he alleged the harassment continued after 1997. Id. at 2-3. The Court thus had to consider "whether the alleged subsequent discrimination that continued from 1997 until 1999 (partially covered by a later EEOC administrative complaint filed in 1998) can properly be considered to be part of the same transaction or series of connected transactions adjudicated to a final judgment in [the preceding case]." Id. at 4.
For guidance as to the meaning of "transaction" and "series," the Court looked to the Restatement (Second) of Judgments and identified the relevant factors as "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations." Id. at 4-5 (quoting Restatement (Second) of Judgments § 24). In particular, noting the "federal rules' `considerable freedom of amendment and [the system's] ... willing[ness] to tolerate changes of direction in the course of litigation," the Court held that the first judgment extinguished the later filed claim. Id. at 5 (quoting Restatement (Second) of Judgments § 24, cmt. a). While multiple factors supported the Court's determination, the following factors are noteworthy: the first suit included a hostile work environment claim for which later incidents would have been additional evidence that would logically fit in the same litigation unit; the absence of a new discrete act of discrimination that would be independently actionable; the newly-asserted incidents were known to the plaintiff before the commencement of trial proceedings in the first action; the new incidents could have augmented the plaintiff's damages award in the first action. Id. at 6-7.
The Court also considered the potential significance of the administrative proceedings regarding the later-filed action. The later-filed action was not administratively exhausted until shortly before the trial of the first action. Id. at 8. Noting that the plaintiff could have requested a stay and could have requested that the EEOC accelerate its proceedings
Plaintiff contends her claim is a fresh claim based on a different transaction because the claim is based on the termination of her employment and not the adverse action that occurred prior to termination. Plaintiff argues that her termination is subsequent conduct similar to the subsequent conduct in Gonzalez-Pina v. Rodriguez, 407 F.3d 425 (1st Cir. 2005), where the Court permitted the plaintiff to assert an employment-related claim after judgment entered in an earlier employment claim. In Gonzalez, however, the plaintiff asserted in his second action a claim based on new conduct that occurred after judgment entered in the first action. Id. at 428, 430. In contrast, the subsequent conduct of which Plaintiff complains in this action did not occur after the resolution of Hagerman I. Rather, while the conduct (i.e., the termination of Plaintiff's employment) occurred after the conduct alleged in Hagerman I, the conduct actually occurred before Plaintiff filed her complaint in Hagerman I.
Plaintiff also relies on the Eleventh Circuit's decision in Pleming v. Universal-Rundle Corporation, 142 F.3d 1354 (11th Cir. 1998). In Pleming, the circuit court held that the district court's entry of judgment on res judicata grounds was erroneous, where the action was based on incidents of alleged discrimination that occurred while the prior litigation was pending. Id. at 1356. In short, the plaintiff's first action arose from the alleged discriminatory failure to hire the plaintiff for one position in 1993, whereas the plaintiff's second action arose from the failure to hire her for two different positions in 1994. The plaintiff filed her first action in 1994, before the other two positions became available. Summary judgment entered against the plaintiff's first action in 1996. Id. at 1356-57. The circuit court determined that the permissive rules governing the amendment of pleadings did not justify claim preclusion, even though the plaintiff had introduced evidence regarding the 1994 positions in support of her pretext argument in the first case. Id. at 1357. The Court explained that "res judicata does not punish a plaintiff for exercising the option not to supplement the pleadings with an after-acquired claim." Id. Unlike in Pleming, Plaintiff's claim based on the termination of her employment was not an "after-acquired claim." Plaintiff's employment was terminated before she filed the complaint in Hagerman I.
Because the conduct (i.e., Defendant's termination of Plaintiff's employment) occurred before Plaintiff commenced Hagerman I and because the circumstances underlying the termination are the same circumstances Plaintiff cites to support the claims she asserted in Hagerman I, the pertinent legal authority and the relevant factors identified by the First Circuit in Havercombe appear to compel application of res judicata to preclude Plaintiff from proceeding in this action.
Plaintiff argues that certain exceptions to res judicata apply under the circumstances of her case. (Pl.'s Opposition to Motion to Dismiss at 12-13, ECF No. 17.) Specifically, Plaintiff argues (a) that given the nature of the MSPB's limited jurisdiction over mixed cases, her pursuit of her claims through separate administrative proceedings cannot reasonably be characterized as "claim splitting" and (b) that Defendant acquiesced to the splitting of Plaintiff's mixed case claims from her other EEO matters, including by not arguing "at any point during the three-year litigation of the plaintiff's mixed-case appeal... that the assertion of unlawful discrimination in her mixed-case claim was foreclosed by the alleged identical nature of the 2012 EEO discrimination complaint." (Id. at 13.) Plaintiff in essence invokes two exceptions to res judicata recognized in the Restatement (Second) of Judgments:
Restatement (Second) of Judgments § 26(1)(a), (d).
Plaintiff contends that the separate administrative proceeding before the MSPB on Plaintiff's removal from her position, and the requirement of administrative exhaustion before she could commence this action, constitute a scheme that contemplates claim-splitting and thus res judicata should not bar this action. In particular, Plaintiff argues the different administrative processes applicable to the claims she asserted in Hagerman I and in this action dictated the different dates on which she commenced the two actions in this Court. She contends that the claim asserted in this action was not administratively exhausted until well after the administrative claims involved in Hagerman I were exhausted, and after Hagerman I was dismissed.
Due to the limited nature of MSPB jurisdiction, which requires the challenge to a suspension of longer than 14 days or the removal from employment, and an employee's ability to pursue EEO remedies based on other adverse employment conditions or actions, the statutory and regulatory scheme applicable to federal-sector employees commonly results in parallel administrative proceedings that involve related claims of discrimination. The jurisdiction for private-sector administrative complaints can also result in parallel proceedings. In that context, the First Circuit was not persuaded that separate Title VII administrative proceedings that resulted in separate right to sue letters justified claim splitting in the district court where it was possible for the plaintiff to join the claims. Havercombe, 250 F.3d at 8. The First Circuit, therefore, has not, at least to this point, applied the statutory scheme exception articulated in the Restatement (Second) of Judgments § 26(1)(d). In fact, the First Circuit in Havercombe cautioned against the application of equitable exceptions to res judicata:
250 F.3d at 9.
Consistent with the First Circuit's reasoning in Havercombe, to permit the judgment in Hagerman I to have claim preclusive effect is not "plainly inconsistent with the fair and equitable implementation of [the] statutory ... scheme"; nor "is the sense of the scheme that the plaintiff should be permitted to split his claim" in court. Restatement (Second) of Judgments § 26(1)(d).
Plaintiff cites several courts, including the First Circuit, which have recognized an exception to the application of the res judicata doctrine where the moving party acquiesced in the splitting of claims. In Calderon v. Rosado, 805 F.2d 1085 (1st Cir. 1986), the First Circuit considered whether a plaintiff's voluntary dismissal with prejudice of an action for wrongful discharge brought in the Commonwealth of Puerto Rico barred a subsequent age discrimination case filed in federal court. Review of Calderon suggests that the two actions considered by the First Circuit were pending at the same time. The plaintiff evidently filed the federal court ADEA claim three months after the filing of the wage claim in the Puerto Rico court. The plaintiff then expressed his intent to withdraw the Puerto Rico case because the remedy in federal court was preferable. The defendant agreed provided the wage claim was dismissed with prejudice.
Upon review of certain docket entries in the commonwealth action, the First Circuit observed that "[i]t is clear ... that plaintiff never expected his voluntary dismissal with prejudice of his [claim based on a Puerto Rico statute] would bar him from litigating his ADEA claim." Id. at 1086. In reversing the trial court's dismissal of the federal action on res judicata grounds, the Court wrote:
Id. at 1087. The First Circuit has since characterized Calderon as follows:
Barreto-Rosa v. Varona-Mendez, 470 F.3d 42, 46 (1st Cir. 2006).
In this case, Defendant acknowledges Plaintiff's general right to pursue a "mixed case" regarding the termination of her employment following resolution of her administrative appeal, and agrees Plaintiff can seek judicial review of the administrative decision regarding the termination of her employment, but contends Plaintiff forfeited her ability to assert a Title VII claim in this Court when Hagerman I was dismissed with prejudice. (Reply at 3, ECF No. 19.) The issue is whether under the circumstances, Defendant can be deemed to have agreed to (i.e., acquiesced to) or waived objection to Plaintiff's ability to pursue a "mixed case" following the conclusion of the administrative proceedings regarding the termination of her employment.
The analysis begins with the pleadings in Hagerman I and this action. The pleadings establish that throughout the pendency of the Hagerman I, Plaintiff plainly and repeatedly asserted that following completion of the proceedings before the MSPB, she intended to pursue an action in federal court based on the termination of her employment. Defendant, therefore, was clearly on notice that Plaintiff intended to continue to challenge the termination of her employment in federal court. Given that Plaintiff had not asserted a claim in Hagerman I based on her termination, but had alerted Defendant to her desire to assert such a claim, Defendant was also on notice that Plaintiff's continued challenge would logically include a "mixed case" following completion of the administrative proceeding regarding the termination of her employment.
The pleadings also establish that the dismissal in Hagerman I was not the result of the negotiated resolution of Plaintiff's claims, nor was it the result of judicial action on the merits of Plaintiff's claims.
While the pleadings in the two cases suggest Plaintiff intended to pursue a "mixed case" in federal court upon completion of the proceedings before the MSPB, the pleadings alone are insufficient to establish that Defendant acquiesced to Plaintiff's splitting her claims in court. The administrative proceedings, however, are also relevant to Defendant's possible acquiescence.
Whether Defendant's conduct in Hagerman I and before the MSPB can fairly be characterized as Defendant's acquiescence to Plaintiff's claim splitting cannot be definitively discerned on the pleadings at this stage of the proceedings. For instance, the pleadings lack any evidence of the positions asserted by Defendant in the administrative process,
Based on the foregoing analysis, I recommend the Court:
AVX Corp. v. Cabot Corp., 424 F.3d 28, 30 (1st Cir. 2005).
We have held that a litigant in this position has at least five options to preserve his claim: (1) he can ask the EEOC or its state counterpart to accelerate the administrative process; (2) he can seek an agreement with his former employer not to plead the statute of limitations; (3) he can agree with his employer to split a single claim into two or more suits; (4) he can delay the filing of the first suit until the last possible moment; or (5) he can request that the court postpone or stay the first case until he receives the right-to-sue letter.
Palka v. City of Chicago, 662 F.3d 428, 438 (7th Cir. 2011) (internal quotation marks, brackets, and citation omitted).
