Gresham v. District of Columbia ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MELVIN E. GRESHAM, :
:
Plaintiff, : Civil Action No.: 11-1178 (RC)
:
v. : Re Document No.: 38
:
DISTRICT OF COLUMBIA, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Melvin Gresham brings this employment discrimination action against his
employer, the District of Columbia (“District”), alleging claims under Title VII, 42 U.S.C. §
1981, and 42 U.S.C. § 1983. Pending before the Court is the District’s motion for summary
judgment, on the grounds that, inter alia, this case is barred by res judicata. See ECF No. 38.
For the reasons that follow, the Court will grant the District’s motion.
II. FACTUAL BACKGROUND
The Plaintiff Melvin Gresham is currently a Second District Captain for the Metropolitan
Police Department (“MPD”). See Def.’s Statement Undisputed Facts ¶ 1, ECF No. 38. He has
been an MPD employee since 1984. Id. In 2008 and 2009, Cpt. Gresham brought three other
lawsuits involving similar factual allegations to the ones brought in this suit, and as such, the
Court will chronicle the facts of each to provide a cohesive background.
A. Gresham v. Lanier, 08-cv-1117
On June 27, 2008, Cpt. Gresham (“Plaintiff”) brought suit against MPD, MPD Chief
Cathy Lanier, and several other officers of the MPD. Plaintiff alleged, inter alia, that in 2004, he
“was ordered to ‘target’ Lt. Ronda Nunnally and to assist other uniformed officers in driving her
from the police workforce.” Compl. ¶ 10, ECF No. 38-5. Lt. Nunnally had filed a lawsuit in
2004 against MPD for, inter alia, sex discrimination, and Plaintiff agreed to testify on her behalf,
because he had witnessed another officer physically assault her. Compl. ¶¶ 11‒12. He alleged
that he was offered a promotion if he changed his testimony and denied that he was ordered to
target Lt. Nunnally. Compl. ¶ 14. Plaintiff allegedly reported these attempts by the District of
Columbia Assistant Attorney General to “suborn perjury,” in an affidavit to the Superior Court
judge in Lt. Nunnally’s case. Compl. ¶¶ 14‒15. Ultimately Superior Court Judge Combs-Green
did not allow Plaintiff to testify in Nunnally’s case because she found the bribery allegations to
be “very serious,” and was disappointed Plaintiff’s attorney had made such allegations against
other attorneys. Compl. ¶¶ 15‒16.
Meanwhile, in the same complaint, Plaintiff also made allegations that his co-worker,
Lieutenant Michael Smith, had been subject to several disciplinary actions including: (1) an
incident occurring on October 6, 2007 involving Smith harassing another police officer; (2) an
incident occurring in March 2008 where Smith was reprimanded for violations of Department
policy on mailing tickets to those charged with violations; and (3) an incident occurring in April
2008 where Smith was disciplined for misconduct. See Compl. ¶¶ 17‒21. In those allegations,
he also described what discipline, if any, Smith incurred for his behavior.
In addition, Plaintiff alleged that on or around January 7, 2008, someone “anonymously”
reported that Plaintiff had abused his police powers by using his rank to influence and intimidate
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an investigating officer to alter an investigative report, in connection with a metro bus accident
Plaintiff had been “involved in [in] a police scout car while on duty.” Compl. ¶¶ 22‒23. 1
Plaintiff believed the anonymous report to be written by Lt. Smith based on a comparison of the
one page anonymous letter with transcript testimony of Lt. Smith. Compl. ¶ 24. In connection
with the metro bus incident, Plaintiff also alleged that someone at MPD “leaked” the allegations
against him to the media, describing Plaintiff “as a police officer that had abused his power to
avoid liability in an accident with a metro bus.” Compl. ¶ 23. Because of Plaintiff’s conduct
regarding that incident report and investigation, Chief Lanier recommended that Plaintiff be
“summoned before a trial board with the intent that he be discharged from the police force.”
Compl. ¶ 27. Ultimately, the charges against Plaintiff were withdrawn, but he was still issued an
Official Reprimand. Compl. ¶¶ 28‒29. Plaintiff finally alleged that he “has been DENIED
promotions, and subjected to a hostile work environment all in retaliation for his Whistleblower
activities and his refusal to participate in illegal acts of retaliation against fellow police officers.”
Compl. ¶ 31.
In that action, Plaintiff asserted causes of action for (1) MPD’s violation of 5 U.S.C. §
2301(b)(8), (2) MPD’s violation of D.C. Code § 1-615.51 et seq. (D.C. Whistleblower Protection
Act), (3) Breach of Contract, see Compl. ¶ 44 (alleging that MPD “had a duty to Cpt. Gresham
by way of the terms of employment to provide him every employment opportunity to be fairly
1
Though Plaintiff alleges in this complaint that this accident happened while he
was in a police scout car on duty, it is clear from the complaint in the current action and the
record that the only metro bus incident relevant to the Plaintiff and this case is the one that
occurred while Plaintiff was off duty on November 27, 2007. See Pl.’s Ex. 2, ECF No. 40-2 (“An
anonymous letter was forwarded to the Internal Affairs Division. It indicated that on Tuesday,
November 27, 2007, Captain Melvin Gresham, Third District, was involved in a traffic accident
while in an off-duty capacity in the 1500 Block of U Street, N.W.”).
3
considered for promotion, to avoid being targeted for retaliation, or otherwise harassed”), (4)
Defamation, and (5) Intentional Infliction of Emotion[al] Distress.
The District moved to dismiss under Federal Rule of Civil Procedure 12(b)(4) for failure
to effect proper service pursuant to Federal Rules of Civil Procedure 4(e) and 4(j). See Defs.’
Mot. to Dismiss 1, Gresham v. Lanier, No. 08-1117, ECF No. 12 (D.D.C. Oct. 28, 2008). In a
minute order dated December 9, 2008, the Court granted that motion, saying that “[t]he
complaint is dismissed without prejudice. The plaintiff is permitted to file a new and properly
served complaint naming only the District of Columbia as a defendant provided the complaint is
filed within 30 days.” See Gresham v. Lanier, No. 08-1117, Minute Order (D.D.C. Dec. 9,
2008).
B. Gresham v. District of Columbia, 09-cv-0029
In accordance with the district court’s minute order, Plaintiff re-filed his 2008 lawsuit
against MPD in 2009. In a new complaint filed January 8, 2009, Plaintiff alleged essentially the
same facts that he alleged in his 2008 lawsuit. See Compl. ¶¶ 4‒14, Gresham v. District of
Columbia, No. 09-0029, ECF No. 1 (D.D.C. Jan. 8, 2009) (describing the 2004 lawsuit Lt.
Nunnally had filed and Plaintiff’s instruction from superiors to drive her from the workplace and
not to testify on her behalf, the various disciplinary incidents of Lt. Smith, and the accident with
the metro bus in which Plaintiff was accused of violating his police powers to intimidate a junior
police officer investigating the accident).
However, in this new suit, Plaintiff asserted three causes of action against the District: (1)
violation of Plaintiff’s First Amendment rights under 42 U.S.C. § 1983 by “initiating an adverse
prosecutorial action against him for speaking out against corruption and discriminatory treatment
of fellow officers by agents of the District of Columbia;” see Compl. ¶ 19, (2) violation of the
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D.C. Whistleblower Protection Act, D.C. Code § 1-615.51 et seq., for taking “adverse retaliatory
action against him for his refusal to join in retaliatory, discriminatory and harassing acts against
other uniformed officers targeted for discharge;” see Compl. ¶ 22, and (3) Intentional Infliction
of Emotion[al] Distress.
The district court ultimately dismissed the Plaintiff’s First Amendment 42 U.S.C. § 1983
claim on the grounds that the Plaintiff “failed to show that his injuries resulted from an
unconstitutional policy or practice for which the District can be held liable.” See Memorandum
1, Gresham v. District of Columbia, No. 09-0029, ECF No. 24 (D.D.C. Aug. 3, 2009). The
district court declined to exercise supplemental jurisdiction over the Plaintiff’s state law claims
and dismissed those counts without prejudice. See Memorandum at 5‒6; see also Order,
Gresham v. District of Columbia, No. 09-0029, ECF No. 25 (D.D.C. Aug. 3, 2009)
(“[D]efendant’s motion to dismiss, treated as a motion for summary judgment . . . is granted as to
Count I. Counts II and III are dismissed without prejudice.”). After Plaintiff amended his
complaint to assert diversity jurisdiction as a basis upon which to keep his state claims alive, the
court dismissed Plaintiff’s complaint entirely, on the basis that the Plaintiff could not assert a
diversity jurisdiction claim against the District of Columbia as defendant—because the District is
not a “citizen of a state”—citing Long v. District of Columbia, 820 F.2d 409, 414 (D.C. Cir.
1986). See Memorandum 1, Gresham v. District of Columbia, No. 09-0029, ECF No. 32
(D.D.C. Sept. 9, 2009); Order, Gresham v. District of Columbia, No. 09-0029, ECF No. 33
(D.D.C. Sept. 9, 2009). The Plaintiff appealed that decision, see ECF No. 34, and the D.C.
Circuit affirmed the district court’s dismissal of the case. See ECF No. 36. Thus, Count I was
ultimately dismissed on the merits, and Counts II & III were ultimately dismissed for lack of
subject matter jurisdiction (though not explicitly couched as such).
5
C. Hoffman v. Lanier, 08-cv-1924
Meanwhile, in November 2008, Plaintiff filed another lawsuit, joined by seven other
plaintiffs, against the District of Columbia and the United States Drug Enforcement Agency
(“DEA”). The suit arose out of an incident that occurred on Plaintiff’s property located at 2905
Georgia Avenue, NW, on July 31, 2008. See Am. Compl. ¶ 11, Hoffman v. Lanier, No. 08-1924,
ECF No. 2 (D.D.C. Nov. 26, 2008). The property was owned by Plaintiff, but he leased it to the
District of Columbia Housing Authority, who in turn screened and placed families in the
residence under its Section 8 Program. Am. Compl. ¶ 20. Plaintiff, along with seven others
present at the time, alleged that they were victims of a DEA/MPD raid of that property. Am.
Compl. ¶¶ 1‒8. They alleged that Chief Lanier, agents of the Office of the District of Columbia
Attorney General, and agents of the United States Attorney’s Office authorized unlawful
surveillance operations and an unlawful search and seizure of the Plaintiff’s Georgia Avenue
property. Am. Compl. ¶¶ 23‒26. They also alleged that during the “raid,” officers “threatened
to use deadly force, and did terrorize the plaintiffs putting them in fear of loss of life.” Am.
Compl. ¶ 27.
Plaintiff alleged that “from July 2007 to December 2007, agents of the DCMPD
developed and executed a program of retaliation against Captain Gresham . . . [with] [t]he
objective [being] to dismiss Caption [sic] Gresham from DCMPD employment.” Am. Compl. ¶
13. Plaintiff alleged that he “became the target of the defendants for . . . whistleblower actions
against corrupt DCMPD officers, and to [sic] in retaliation against him for his refusal to give
false testimony against Lt. Nunnally in another civil case.” Id. Plaintiff again raised the
allegations regarding Lt. Smith and the “anonymous” complaint initiated against him for abusing
his police powers in connection with an accident report in January 2008. Am. Compl. ¶ 14.
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Plaintiff also reiterated his allegations against Lt. Smith, explaining that “Lt. Smith has a history
of disciplinary problems.” Am. Compl. ¶ 18.
The eight plaintiffs brought the following fifteen causes of action against both the MPD
and the DEA: (1) violation of First Amendment rights under 42 U.S.C. § 1983, 2 (2) violation of
Fourth Amendment rights under 42 U.S.C. § 1983, (3) violation of Fifth Amendment rights
under 42 U.S.C. § 1981, (4) violation of the D.C. Whistleblower Protection Act, D.C. Code § 1-
615.51 et seq.; (5) Defamation, (6) Invasion of Privacy-False Light, (7) Assault, (8) Battery, (9)
Malicious Prosecution, (10) Theft, (11) Intentional Infliction of Emotional Distress, (12)
Violation of the District of Columbia Human Rights Act, (13) Aiding and Abetting, (14)
Conspiracy, and (15) Declaratory Judgment. See generally Am. Compl. Important to this
Court’s analysis, the cause of action for violation of the District of Columbia Human Rights Act
alleged that “Chief Lanier authorized a series of discriminatory acts against Captain Gresham on
account of his race (African-American), and DENIED him promotion, sought to fire him and
authorized raids on his property and defamatory comments against him.” Am. Compl. ¶ 74.
The various claims in this case were disposed of for various reasons. First, as to the
federal defendants, the district court granted their motion to dismiss, on the grounds that (1)
plaintiffs did not exhaust their administrative remedies for their tort claims under the Federal
Tort Claims Act—which is jurisdictional under that statute—and (2) the plaintiffs could not state
a claim against the United States under 42 U.S.C. § 1983, 42 U.S.C. § 1981, or their D.C. causes
of action because those statutes do not apply to federal actors. The court also dismissed the
2
This Count was brought only by plaintiffs Cpt. Gresham and Angela Hoffman.
Counts III (42 U.S.C. § 1981 violation), IX (Malicious Prosecution), and XIV (Conspiracy) were
also brought only by these two plaintiffs, and Counts IV (D.C. Whistleblower Protection Act
violation) and XII (D.C. Human Rights Act violation) were brought only by Cpt. Gresham. The
rest of the counts were brought by all eight plaintiffs.
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plaintiffs’ claim for a declaratory judgment because of the absence of a live case or controversy.
See Mem. Op. 1, Hoffman v. Lanier, No. 08-1924, ECF No. 35 (D.D.C. Aug. 17, 2009). The
judgment as to the federal actors was thus entered in part on jurisdictional grounds (as to the tort
claims) and in part on the merits (as to the federal and D.C. statutory causes of action). Second,
as to the District of Columbia defendants, the district court granted their motion to dismiss as
conceded, because the plaintiffs failed to respond. See Mem. Op. 13‒14, Hoffman v. Lanier, No.
08-1924, ECF No. 44 (D.D.C. Feb. 4, 2010) (“Here, the plaintiffs have failed to respond to the
District’s arguments for dismissal of the plaintiffs’ claims against it. The plaintiffs have not
offered any excuse for their failure to respond in a timely fashion, nor have they moved for leave
to late-file an opposition. Accordingly, the court grants the District’s motion to dismiss as
conceded and dismisses all claims asserted against the District.”). The plaintiffs filed two
motions for reconsideration, both of which were denied, see ECF Nos. 45, 50, 52, and then filed
a notice of appeal. See ECF No. 53. The D.C. Circuit found that appellants’ notice of appeal
was only timely as to the district court’s order denying their second motion for reconsideration,
and summarily affirmed the district court. See ECF No. 56.
D. Factual allegations in this case
In this action, the Plaintiff alleges similar facts that are more helpfully understood in the
context of the parties’ statements of facts. On November 27, 2007, Plaintiff was involved in an
off-duty car accident when a WMATA bus operator ran into his personal vehicle. See Pl.’s
Statements of Material Facts No. 25 (citing Pl.’s Ex. 2, Pl.’s Ex. 16 at 51‒52), ECF No. 40. On
January 7, 2008, the Internal Affairs Division of the MPD received an anonymous report that
Plaintiff had exercised undue influence over an officer responsible for investigating an accident
in which Plaintiff was involved. See Def.’s Ex. B, ECF No. 38-2. An investigation was
8
conducted, and Plaintiff was ultimately issued an Official Reprimand on May 21, 2008. See id.
Plaintiff believes that white officers generally were and are disciplined less harshly than black
officers (including himself) in the MPD for engaging in similarly egregious or more egregious
conduct. See Pl.’s Statement of Material Facts No. 33. Some of the incidents to which Plaintiff
refers include:
• A 2011 incident involving Lt. VB, a white officer who allegedly intimidated a
Congressional Aide and the wife of a U.S. Congressman in an off-duty accident, and
who was only officially reprimanded for such conduct. See Pl.’s Statement of
Material Facts No. 34.
• A white detective being convicted in D.C. Superior Court of two counts of simple
assault in 2010, and MPD’s failure to terminate him. See Pl.’s Statement of Material
Facts No. 37.
• A 2010 alleged incident involving a white officer kidnapping a Hispanic male; MPD
did not investigate the allegations. See Pl.’s Statement of Material Facts No. 38.
• A 2010 incident where a white officer was charged with failing to respond for duty in
May 2011, making a false statement, and falsifying an Official MPD document.
Charges against this officer were sustained but MPD did not seek to terminate his
employment. See Pl.’s Statement of Material Facts No. 41.
• A 2012 incident where a white officer was alleged to have made a comment that he
would assassinate the First Lady. MPD did not criminally charge the officer. See
Pl.’s Statement of Material Facts No. 42.
• The 2008 and continuing allegations and incidents involving Lt. Smith. See Pl.’s
Statement of Material Facts Nos. 43‒49; see also Pl.’s Resp. to Def.’s Interrogatory
9
16, ECF No. 40-5 (describing incidents ranging from 2008 through 2012, involving,
inter alia, Lt. Smith, the white officer who threatened to assassinate the First Lady,
and Lt. VB).
The present action was filed on June 27, 2011, with an amended complaint filed on
October 26, 2011. See ECF Nos. 1 & 9. In the Amended Complaint, Plaintiff alleges that he
“was disparately disciplined in comparison to fellow White police officers for similar action, and
Plaintiff had allegations of misconduct against him aggressively pursued by DCMPD.” Am.
Compl. ¶ 11. Plaintiff further alleges that in 2008, he “was accused of misconduct by another
officer; his termination was proposed; he was ordered to face a Trial Board; and was issued a
letter of reprimand for conduct unbecoming an officer.” Id. ¶ 12. Plaintiff then makes several
allegations that “White officers have been accused of and found to have been guilty of
misconduct. However, the White officers were not disciplined in some instances, and not
disciplined as severely as Plaintiff, in other instances.” Id. ¶ 13. Some of the other allegations
include that “on or about 2009 a White officer was accused of hacking into someone’s email
account and was not charged by the department, even though he could have been charged
criminally,” and “in 2011, a White officer was found to have falsified a report regarding leave
slips and was not made to face a Trial Board, and he only received a ten (10) day suspension; on
or about 2008 or 2009, another White officer was involved in a fatal shooting and allegedly later
tested positive for drugs but yet he was not subjected to discipline as warranted by the
Department’s policies and procedures.” Id. Plaintiff also claimed that “DCMPD brought a false
complaint against Plaintiff alleging the release of false and misleading information to local
media outlets.” Id. ¶ 14. He further alleged that “[s]ince 2007 and continuing to the present . . .
White officers have engaged in a pattern of misconduct, which violates DCMPD policies and
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procedures, including making false allegations against Plaintiff,” see id. ¶ 18, and that
“[b]etween 2007 and the present, Plaintiff has been repeatedly and continually subjected to a
hostile work environment.” Id. ¶ 23. His final general factual allegation is that “[d]ue to
Plaintiff’s race, and in retaliation for Plaintiff complaining about discrimination, DCMPD has
engaged in a campaign designed to force Plaintiff to resign his position and ruin his career.” Id.
¶ 24. Plaintiff further claims that “[d]espite many complaints and challenges to the unfair and
discriminatory treatment, management, including the Chief of Police has failed and refuses to
take effective action to end the unfair treatment.” Id.
Plaintiff has asserted five claims in this action. The first is a claim for Race
Discrimination and Hostile Work Environment under Title VII of the Civil Rights Act of 1964,
wherein he alleged as examples that he “was targeted by his coworkers; false allegations were
made upon him; a rental unit thought to be his residence was raided for allegedly having drugs
on the premises; he was informed by the Attorney General that his rental unit would be
investigated as a nuisance and threatened that his unit could be seized; he was required to go
through a formal hearing on the matter, which resulted in him and his tenants being cleared of all
the charges; he was advised that a Departmental official told another officer to do a background
check on him; on or about October 2, 2008, [and] another officer informed him that he was told
by a Departmental official to ‘find anything on [Plaintiff] that the Department could use against
him.’” Am. Compl. ¶ 36.
The second count is for Retaliation/Reprisal/Hostile Work Environment, also under Title
VII, where Plaintiff alleges that “[o]n or about 2005, an employee named Plaintiff as a witness in
her EEO complaint. In October 2007, Plaintiff maintains that he was approached during the
official investigation by Defendant regarding the allegations asserted in her EEO complaint.
11
When questioned, he refused to change his position of what he believed occurred. In 2008,
Plaintiff was called to testify in support of her federal EEO case.” Id. ¶ 43. He claimed that “[a]s
a direct result of Plaintiff’s complaints of workplace discrimination and his participation in his
coworker’s EEO complaint, he was subjected [sic] retaliation and a hostile work environment.”
Id. ¶ 44. He elaborated that “[t]he adverse retaliatory actions to which Plaintiff has been
subjected are directly a result of Plaintiff having previously engaged in protected EEO activity.”
Id. ¶ 47. He also reiterated the factual allegations regarding his Georgia Avenue property and the
false allegations allegedly made against him by other officers. Id. ¶ 48.
Plaintiff’s third cause of action asserts a claim for race discrimination under 42 U.S.C. §
1981, asserting as a predicate the Fifth Amendment. Plaintiff’s fourth cause of action asserts a
claim for race discrimination under 42 U.S.C. § 1983, also asserting as a predicate the Fifth
Amendment. His fifth cause of action is one for Equitable Relief. 3
* * *
The District has moved for summary judgment arguing first that the Plaintiff’s claims are
barred by res judicata, based on Plaintiff’s filing of three prior actions “arising from the same
nucleus of operative facts as this action.” See Def.’s Mot. Summ. J. 2, 6‒8, ECF No. 38. In the
alternative, the District argues that it is entitled to judgment on Plaintiff’s claims because no
reasonable jury would find for Plaintiff on his Title VII claims, and 42 U.S.C. §§ 1981 and 1983
are not appropriate channels for Plaintiff to challenge the District’s alleged misconduct. See
Def.’s Mot. Summ. J. 2, 8‒14. The Court agrees that Plaintiff’s claims are barred by res
3
Count V is for “Equitable Relief,” wherein Plaintiff seeks, inter alia, EEO
training for his supervisors. This count does not state a substantive cause of action, but rather
represents a claim for relief based on Defendant’s alleged discriminatory behavior. The Court
accordingly construes Count V as a Prayer for Relief, not as a substantive cause of action.
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judicata, and will therefore grant defendant’s motion for summary judgment for the reasons that
follow.
III. ANALYSIS
A. Legal Standard on a Motion for Summary Judgment
A court may grant summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-
movant. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant. See Anderson, 477 U.S. at 255. Nevertheless,
conclusory assertions offered without any evidentiary support do not establish a genuine issue
for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
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B. Res Judicata
“Also known as claim preclusion, the doctrine of res judicata holds that a judgment on
the merits in a prior suit bars a second suit involving identical parties or their privies based on the
same cause of action.” Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210, 217 (D.C. Cir. 2004).
Res judicata bars a subsequent lawsuit “if there has been prior litigation (1) involving the same
claims or cause of action, (2) between the same parties or their privies, and (3) there has been a
final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Porter v. Shah,
606 F.3d 809, 813‒14 (D.C. Cir. 2010) (citations omitted); see also Smalls v. U.S., 471 F.3d 186,
192 (D.C. Cir. 2006) (same). The parties dispute the first three elements of the res judicata test,
and accordingly, the Court will analyze those elements in turn.
a. The prior actions arose from the same nucleus of facts
The first factor in the res judicata analysis is known as the “identity” element, and is
defined as follows: “there is an identity of the causes of action when the cases are based on the
same nucleus of facts because it is the facts surrounding the transaction or occurrence which
operate to constitute the cause of action, not the legal theory on which a litigant relies.” Capitol
Hill Group v. Pillsbury, Winthrop, Shaw, Pittman LLC, 569 F.3d 485, 490 (D.C. Cir. 2009)
(emphasis added) (internal quotation marks and citations omitted). “To determine whether two
cases share the same nucleus of facts, the Court considers 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 or business understanding or usage.”
McIntyre v. Fulwood, 892 F. Supp. 2d 209, 215 (D.D.C. 2012) (citing Stanton v. Dist. of
Columbia Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997)).
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The Court will discuss the counts separately because they allege different facts that
change the analysis; the Court will begin with Count II, as it can be disposed of most quickly.
1. Count II: Title VII: “Retaliation/Reprisal/Hostile Work Environment”
In Count II specifically, Plaintiff makes the following factual allegations already raised in
his prior lawsuits:
• Plaintiff references being named as a witness in a co-worker’s EEO complaint in
2005, and that “he was approached during the official investigation by Defendant
regarding the allegations asserted in her EEO complaint. When questioned, he
refused to change his position of what he believed occurred.” Am. Compl. ¶ 43.
• He alleges that “[a]s a direct result of Plaintiff’s complaints of workplace
discrimination and his participation in his coworker’s EEO complaint, he was
subjected [sic] retaliation and a hostile work environment.” Id. ¶ 44.
• “The adverse retaliatory actions to which Plaintiff has been subjected are directly a
result of Plaintiff having previously engaged in protected EEO activity.” Id. ¶ 45.
• He also describes the “raid” on his Georgia Avenue property, that he was “targeted by
his coworkers” and that “false allegations were made upon him.” Id. ¶ 48. 4
Plaintiff alleged these same facts in all three prior actions, and importantly, alleged that
he was retaliated against and harassed by Lt. Smith, Chief Lanier, and other members of the
MPD for engaging in EEO and whistleblowing activity. Specifically, in his first 2008 lawsuit,
Plaintiff alleged that he “has been DENIED promotions, and subjected to a hostile work
environment all in retaliation for his Whistleblower activities and his refusal to participate in
4
Allegations in paragraph 48 of Count II appear to be duplicative of allegations in
paragraph 36 in Count I. Because the Court analyzes paragraph 36 in section B.a.2, that analysis
is equally applicable to paragraph 48.
15
illegal acts of retaliation against fellow police officers.” Compl. ¶ 31, No. 08-1117, ECF No. 1
(emphasis added). He also alleged that MPD breached its contractual duty to him “to avoid
being targeted for retaliation, or otherwise harassed.” Compl. ¶ 44 (emphasis added). In his
other 2008 lawsuit, Plaintiff alleged that “from July 2007 to December 2007, agents of the
DCMPD developed and executed a program of retaliation against Captain Gresham . . . [with]
[t]he objective [being] to dismiss Caption [sic] Gresham from DCMPD employment.” Am.
Compl. ¶ 13, No. 08-1924, ECF No. 2 (emphasis added). He also alleged that he “became the
target of the defendants for . . . whistleblower actions against corrupt DCMPD officers, and to
[sic] in retaliation against him for his refusal to give false testimony against Lt. Nunnally in
another civil case.” Id. (emphasis added).
Plaintiff pursued these claims seeking legal relief under the D.C. Whistleblower
Protection Act and 42 U.S.C. § 1983 for First Amendment violations. Plaintiff fails to identify
any reason he could not have also brought retaliation and/or hostile work environment claims
under Title VII in any of his prior suits, given that the factual allegations giving rise to this count
are the same as those brought in his prior suits. 5 Indeed, Plaintiff brought a DC Human Rights
5
Though the issue was not raised by the parties, the Court queried whether Plaintiff
was waiting for his EEOC right-to-sue letter before filing his Title VII claims—which he did not
receive until March 29, 2011. See Am. Compl. ¶ 8, ECF No. 9. Plaintiff states in his EEO
Statement of Facts that he filed an EEOC complaint in March 2008, and that as of November
2010, that complaint had not been resolved. See Pl.’s Ex. 8 at 1, ECF No. 40-8. He also stated
in his deposition that he filed an EEOC complaint in the spring of 2008. See Gresham Dep. at
111:22‒112:3, ECF No. 38-1. A party may file a civil action 180 days after filing an EEOC
charge, if the EEOC has not yet completed its investigation of the party’s charge. See 42 U.S.C.
§ 2000e-5(f)(1) (“If a charge filed within the Commission pursuant to subsection (b) of this
section is dismissed by the Commission, or if within one hundred and eighty days from the filing
of such charge . . . the Commission has not filed a civil action . . . the Commission shall so notify
the person aggrieved . . . .”); see also U.S. EEOC website, “Filing a Lawsuit,” available at
http://www.eeoc.gov/employees/lawsuit.cfm (last accessed August 15, 2014) (“If you want to
file a lawsuit before we have finished our investigation, you can request a Notice of Right-to-
Sue. If more than 180 days have passed from the day you filed your charge, we are required by
16
Act claim—analyzed under the same legal framework as federal employment discrimination and
retaliation claims, see DuBerry v. District of Columbia, 582 F. Supp. 2d 27, 40 (D.D.C. 2008)—
in the 2008 “raid” suit where he alleged that “Chief Lanier authorized a series of discriminatory
acts against Captain Gresham on account of his race (African-American), and DENIED him
promotion, sought to fire him and authorized raids on his property and defamatory comments
against him.” Am. Compl. ¶ 74, Hoffman v. Lanier, No. 08-1924, ECF No. 2. Because Plaintiff
does not identify any reason that prevented him from asserting employment discrimination
claims on the basis of race in that suit, he is not entitled to another bite of the same factual apple
now.
Although Plaintiff previously claimed that the retaliation he suffered was based on his
First Amendment protected activity or his whistle-blowing activities and now claims that the
retaliation was based on his EEO protected activities, such a change in theory does not change
the outcome. See RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp.
2d 182, 191‒92 (D.D.C. 2011) aff’d, 682 F.3d 1043 (D.C. Cir. 2012) (“Since ‘claim preclusion
precludes the litigation of claims, not just arguments, the plaintiff cannot re-litigate an issue
law to give you the notice if you ask for it.”). Thus, Plaintiff could have brought his Title VII
claims as early as late-2008 (180 days after sometime in the Spring of 2008) in connection with
his prior lawsuits, and did not necessarily have to wait until March 2011 when he got his official
right-to-sue letter. Alternatively, he could have amended his prior complaints to include Title
VII claims, or moved for stays in his prior suits, while the EEOC decided his Title VII claims.
See Graham v. Gonzales, No. 03-1951, 2005 WL 3276180, at *4 (D.D.C. Sept. 30, 2005)
(explaining a plaintiff’s alternatives if he finds himself at a crossroads between waiting for a
right-to-sue letter and fearing res judicata: “Alternatively, he could have filed an action in
advance of his right to sue on the Title VII claims, but moved to stay proceedings until his right-
to-sue date had passed. Or, he could have requested, after October 6, 2002 [180 days after the
EEOC charge was filed], to add his Title VII claim by amendment to the complaint he filed in
June.”); see also Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 714‒15 (9th Cir.
2001) (“[W]e now join our sister circuits in holding that Title VII claims are not exempt from the
doctrine of res judicata where plaintiffs have neither sought a stay from the district court for the
purpose of pursuing Title VII administrative remedies nor attempted to amend their complaint to
include their Title VII claims.”).
17
simply by asserting a different legal claim . . . .The fact that the plaintiff asserts a different legal
claim [on the same facts] does not preclude application of res judicata.”) (internal quotation
marks and citations omitted) (emphasis in original); Youngin’s Auto Body v. District of
Columbia, 775 F. Supp. 2d 1, 7 (D.D.C. 2011) (“[F]or the purposes of claim preclusion, the legal
theory upon which the plaintiff relies is irrelevant; rather, the relevant inquiry is whether the
plaintiff’s claims arise out of the same ‘common nucleus of facts’ as the [earlier litigation].”)
(internal citation omitted). Any claim for retaliation—under any legal theory—could have and
should have been brought when Plaintiff alleged that he was being retaliated against for engaging
in protected activity—whether under the D.C. Whistleblower Protection Act or Title VII.
Similarly, any claim alleging a hostile work environment—again under any legal theory—could
have and should have been brought in prior suits where Plaintiff alleged that he was harassed and
subjected to a hostile work environment, given that those claims arise from the same facts
previously alleged by Plaintiff. Case law is clear that parties are barred from bringing
subsequent lawsuits for claims that should have and could have been raised in previous
litigation. See Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 376 n.1 (1985)
(explaining that claim preclusion refers to “the preclusive effect of a judgment in foreclosing
litigation of matters that should have been raised in an earlier suit”) (emphasis added); Capitol
Hill Grp., LLC, 569 F.3d at 491 (“[R]es judicata . . . bars relitigation not only of matters
determined in a previous litigation but also ones a party could have raised[.])” (citing NRDC v.
Thomas, 838 F.2d 1224, 1252 (D.C. Cir. 1988)) (emphasis added). Accordingly, Plaintiff’s
Count II for “Retaliation/Reprisal/Hostile Work Environment” under Title VII arises from the
same nucleus of facts raised in his prior suits, and satisfies this element of the res judicata
18
analysis. As set forth below, because the other prongs of the analysis are also met, this count is
barred in its entirety by res judicata.
2. Counts I, III, IV & V
The other four counts in Plaintiff’s complaint are slightly more complicated because
those counts rehash old facts arising from Plaintiff’s prior suits, and also allege new facts that
arose subsequent to the judgments in his prior suits, as ongoing conduct by the defendant.
Plaintiff claims that he seeks “redress for the wrongs he was subjected to by the District since
2007 to the present, and not just what occurred in 2007.” See Pl.’s Opp’n Mot. 19, ECF No. 40.
Specifically, Plaintiff alleges that from 2007 or 2008 through present, he has been subjected to
more harsh discipline than white officers. See Am. Compl. ¶¶ 11, 12, 13, 27. To support these
claims, Plaintiff cites factual examples that arose prior to, and were alleged in his 2008 and 2009
lawsuits. See Am. Compl. ¶¶ 12, 13; see also Pl.’s EEO Statement of Facts, ECF No. 40-8
(explaining incidents with Lt. Smith that occurred in 2007 and 2008, the metro bus incident, and
Plaintiff’s Official Reprimand). He also adds factual support from incidents occurring in 2009,
2010, 2011, and 2012. See Am. Compl. ¶ 13; see also Pl.’s Answer to Interrogatory No. 16,
ECF No. 40-5 (chronicling incidents of bad conduct by white officers of various ranks from 2009
through 2012 and whether or not they were disciplined for such conduct).
It is true that “[r]es judicata does not preclude claims based on facts not yet in existence
at the time of the original action.” See Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002).
However, Plaintiff’s “new” factual allegations are not actionable because they do not amount to
new acts of discrimination or retaliation against Plaintiff; rather they simply provide more
comparator evidence to suggest that the discipline the Plaintiff received in 2008 or earlier was
19
discriminatory. 6 Counts I, III, and IV are specifically for race discrimination under Title VII and
42 U.S.C. §§ 1981 & 1983, and for hostile work environment under Title VII. The “unequal
discipline” Plaintiff alleges he was subjected to has not changed at all; the only adverse
employment actions he alleges he suffered are the same in the prior suits as in this one—his
proposed termination, the investigation by Internal Affairs, and the resulting reprimand for
exercising undue influence in connection with a metro bus accident in 2008. Compare Am.
Compl. ¶¶ 14‒17, No. 08-1924, ECF No. 2 and Am. Compl. ¶¶ 13‒14, No. 09-0029, ECF No. 28
(prior suits), with Am. Compl. ¶ 12, No. 11-1178, ECF No. 9 (present action) (“In 2008, Plaintiff
was accused of misconduct by another officer; his termination was proposed; he was ordered to
face a Trial Board; and was issued a letter of reprimand for conduct unbecoming an officer.”).
6
Courts have struggled with whether post-judgment events are barred by res
judicata, but have generally been able to draw a line where the new facts give rise to a new cause
of action. See Storey v. Cello Holdings, LLC, 347 F.3d 370, 384 (2d Cir. 2003) (“[C]laim
preclusion may apply where some of the facts on which a subsequent action is based post-date
the first action but do not amount to a new claim.”); Waldman v. Village of Kiryas Joel, 207
F.3d 105, 112‒114 (2d Cir. 2000) (finding that new facts asserted by the plaintiff are “nothing
more than additional instances of what was previously asserted,” and as such the new facts were
still based principally upon the common nucleus of operative facts at issue in the prior lawsuit,
and were barred by res judicata); see also Misischia v. St. John’s Mercy Health Sys., 457 F.3d
800, 805 (8th Cir. 2006) (“The question is not whether the alleged predicate acts occurring after
the state court judgment would support an independent RICO claim. The question is whether
adding those predicate acts to the acts occurring in 1993 and 1994 can revive RICO claims that
are otherwise barred. ‘The doctrine of res judicata would become meaningless if a party could
relitigate the same issue . . . by merely positing a few additional facts that occurred after the
initial suit.’”) (quoting Dubuc v. Green Oak Tp., 312 F.3d 736, 751 (6th Cir. 2002)); Crawford v.
Chabot, 202 F.R.D. 223, 227 n.1 (W.D. Mich. 1998) (explaining that the new facts that arose
after plaintiff filed his first state court lawsuit were “part and parcel of the earlier incidents
forming the basis of plaintiff’s complaint in state court,” and as such, were a mere outgrowth of
the prior state court action and thus arose out of the same transaction or occurrence as that
lawsuit and were barred by res judicata). As set forth above, the “new” facts alleged here
constitute mere comparator evidence and do not give rise to a new cause of action. Even if this
new comparator evidence were actionable, however, it is evident that these examples are merely
attempts by Plaintiff to bolster a claim that already could have and should have been brought,
and would therefore be barred by res judicata, following the guidance of Misischia and
Waldman.
20
The facts giving rise to this cause of action have not changed either; rather, Plaintiff has added
more examples of white officers engaging in misconduct and the resulting disciplinary action (or
lack thereof) taken by MPD. But Plaintiff had sufficient facts to bring these discrimination
claims in his prior suits even without these additional allegations, given that he made numerous
allegations that Lt. Smith was subjected to less harsh discipline than Plaintiff, citing incidents
from 2007 and 2008. See, e.g., Am. Compl. ¶ 18, Hoffman v. Lanier, No. 08-1924, ECF No. 2
(explaining prior charges against Lt. Smith by MPD), Pl.’s EEO Statement of Facts, ECF No. 40-
8 (describing numerous instances in 2008 where Lt. Smith’s misconduct was reported, but
nothing was done about it by Plaintiff’s superiors). Accordingly, these counts also arise from the
same nucleus of facts as Plaintiff’s prior suit, satisfying the first element of res judicata.
Moreover, any non-comparator factual allegations, i.e., Am. Compl. ¶¶ 29, 36, 48, were
also already brought in Plaintiff’s prior suits and are likewise barred by res judicata.
Specifically, Plaintiff’s allegation regarding being disciplined for “allegedly yelling in the street
in the 1500 Block of U Street, N.W.,” appears to arise out of the same metro bus accident that
resulted in Plaintiff’s only disciplinary action, as that incident occurred in the 1500 Block of U
Street on November 27, 2007. See Pl.’s Ex. 2, ECF No. 40-2 & Pl.’s Ex. 23 at 2, ECF No. 40-23
(describing the November 27, 2007, metro bus accident that resulted in the adverse employment
action against Plaintiff as occurring on the 1500 Block of U Street). As set forth above, Plaintiff
has already brought several prior lawsuits arising out of his actions and subsequent discipline
from this metro bus accident, and any other causes of action arising from that accident are barred
by res judicata.
Plaintiff’s other non-comparator factual allegations in these counts were also already
brought in Hoffman v. Lanier. Specifically, here Plaintiff alleges that “he was informed by the
21
Attorney General that his rental unit would be investigated as a nuisance and threatened that his
unit could be seized . . . [and] he was advised that a Departmental official told another officer to
do a background check on him.” Am. Compl. ¶¶ 36, 48. He also alleges that on or around
October 2, 2008, “another officer informed him that he was told by a Departmental official to
‘find anything on [Plaintiff] that the Department could use against him.’” Am. Compl. ¶¶ 36, 48.
However, Plaintiff already made these factual allegations in Hoffman v. Lanier. See Am. Compl.
¶¶ 32, 33, Hoffman v. Lanier, No. 08-1924, ECF No. 2 (alleging that the U.S. Attorney for the
District of Columbia “has threatened criminal action to seize [Plaintiff’s] property alleging that it
presents a nuisance,” and alleging that Senior managers at DCMPD ordered seizure of, inter alia,
Cpt. Gresham’s computer “to find anything . . . that they . . . could use against him.”).
Accordingly, causes of action arising from these factual allegations are also barred by res
judicata, as they were already brought in one of Plaintiff’s prior lawsuits.
b. The parties are in privity
Meanwhile, as to the second res judicata factor, one in privity with another is said to be
one “so identified in interest with a party to former litigation that he represents precisely the
same legal right in respect to the subject matter involved.” Jefferson School of Social Science v.
Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C. Cir. 1963); accord McIntyre, 892 F.
Supp. 2d at 215. The Plaintiff argues that the complaint here differs from the complaints in
Gresham v. Lanier, 08-cv-1117, and Hoffman v. Lanier, 08-cv-1924, because the current suit
names only the District as defendant whereas the previous suits named multiple police officers as
defendants as well. See Pl.’s Opp’n Mot. 19‒20. The Plaintiff also argues that in Hoffman v.
Lanier, he was one of eight plaintiffs. Id. at 20. These differences are of no legal consequence.
The defendant here is the District of Columbia, who was named as a defendant in all of the
22
Plaintiff’s prior lawsuits. Moreover, in Hoffman v. Lanier, the Plaintiff named the individual
officers in their official capacities, and then amended his complaint to name only the District of
Columbia, given that a suit against an officer in his official capacity is the same as a suit against
the District. Compare Compl., ECF No. 1 (Nov. 6, 2008) with Am. Compl., ECF No. 2 (Nov.
26, 2008), Hoffman v. Lanier, No. 08-1924; see also Blue v. District of Columbia, 850 F. Supp.
2d 16, 23 (D.D.C. 2012) (“Based upon the understanding that it is duplicative to name both a
government entity and the entity’s employees in their official capacity, courts routinely dismiss
claims against the officials to conserve judicial resources when the entity itself is also sued.”)
(citing Trimble v. District of Columbia, 779 F. Supp. 2d 54, 57 n.3 (D.D.C. 2011)). And in
Gresham v. Lanier, the Plaintiff originally named police officers without specifying whether it
was in their official capacities and later filed a motion to amend his complaint to name only the
District of Columbia as defendant—presumably for the same reason. See Pl.’s Mot. to Amend
Complaint, Gresham v. Lanier, No. 08-1117, ECF No. 14 (D.D.C. Nov. 24, 2008). Indeed, the
court in that case dismissed the case without prejudice, instructing Plaintiff to name only the
District of Columbia as defendant, which Plaintiff later did. See Gresham v. Lanier, No. 08-
1117, Minute Order (D.D.C. Dec. 9, 2008) (“[T]he complaint is dismissed without prejudice.
The plaintiff is permitted to file a new and properly served complaint naming only the District of
Columbia as a defendant provided the complaint is filed within 30 days.”). Finally, there is a
similarity in factual allegations, as set forth above, and thus, the District here similarly
“represents precisely the same legal right in respect to the subject matter of the case . . . .”
McIntyre, 892 F. Supp. 2d at 215. Accordingly, this res judicata factor is met.
23
c. The prior actions constitute final judgments on the merits
As to the third and last disputed element of the res judicata analysis, the District argues
that the prior actions were decided on the merits; not surprisingly, the Plaintiff argues that none
of the three lawsuits were dismissed on the merits. To determine whether they were, the Court
analyzes each dismissal.
The first lawsuit, Gresham v. Lanier, was dismissed under Federal Rule of Civil
Procedure 12(b)(4) for failure to effect proper service. In a minute order, the district court
granted the defendant’s motion to dismiss without prejudice. See Gresham v. Lanier, No. 08-
1117, Minute Order (D.D.C. Dec. 9, 2008) (“[T]he complaint is dismissed without prejudice.
The plaintiff is permitted to file a new and properly served complaint naming only the District of
Columbia as a defendant provided the complaint is filed within 30 days.”). This did not
constitute a dismissal on the merits, as it is axiomatic that a dismissal without prejudice does not
constitute a dismissal on the merits with claim preclusive effect. Brewer v. District of Columbia,
891 F. Supp. 2d 126, 134 (D.D.C. 2012) (“If the prior action has been dismissed without
prejudice, there has been no final judgment on the merits, and a plaintiff will not be precluded by
the doctrine of res judicata from having his claims heard on the merits in a separate court.”)
(citing Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983)); Ponder v. Chase Home
Fin., LLC, 865 F. Supp. 2d 13, 17 (D.D.C. 2012) (“It is . . . beyond dispute that a dismissal
without prejudice does not determine the merits.”) (citation omitted).
That lawsuit, however, was re-filed in 2009, naming only the District of Columbia as a
defendant. See generally Compl., Gresham v. District of Columbia, No. 09-0029, ECF No. 1
(D.D.C. Jan. 8, 2009). That suit alleged three counts: (1) a 42 U.S.C. § 1983 claim for violating
the Plaintiff’s First Amendment rights in retaliation for “initiating an adverse prosecutorial action
24
against him for speaking out against corruption and discriminatory treatment of fellow officers
by agents of the District of Columbia,” see Compl. ¶¶ 18‒19; (2) a claim for violation of the
D.C. Whistleblower Protection Act, for taking “adverse retaliatory action against him for his
refusal to join in retaliatory, discriminatory and harassing acts against other uniformed officers
targeted for discharge,” Compl. ¶ 22; and (3) a claim of Intentional Infliction of Emotional
Distress for “erroneously charging him with conduct the consequence of which if substantiated
could have resulted in his loss of employment.” Compl. ¶ 25. The district court treated the
defendant’s motion to dismiss Count I as one for summary judgment and granted that motion;
Counts II and III were initially dismissed without prejudice. See Order, Gresham v. District of
Columbia, No. 09-0029, ECF No. 25 (D.D.C. Aug. 3, 2009) (“[D]efendant’s motion to dismiss,
treated as a motion for summary judgment . . . is granted as to Count I. Counts II and III are
dismissed without prejudice.”). Thus, as to Plaintiff’s 42 U.S.C. § 1983 First Amendment claim,
the district court issued a decision on the merits barred on res judicata grounds. See FED. R. CIV.
P. 41(b) (“Unless the dismissal order states otherwise, a dismissal under subdivision (b) and any
dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to
join a party under Rule 19—operates as an adjudication on the merits.”).
After granting the Plaintiff leave to amend his complaint, the court ultimately dismissed
the Plaintiff’s entire complaint. See Order, Gresham v. District of Columbia, No. 09-0029, ECF
No. 33 (D.D.C. Sept. 9, 2009) (“For the reason set forth in the accompanying memorandum,
plaintiff’s complaint is dismissed”). However, that dismissal was one for lack of subject matter
jurisdiction, as the court specified in the accompanying memorandum that “[t]he District’s
response to [the] order of the court, treated as a motion to dismiss for want of subject matter
jurisdiction, will be granted. Plaintiff’s remedy, if he has one, must be pursued in the courts of
25
the District of Columbia.” See Memorandum, Gresham v. District of Columbia, No. 09-0029,
ECF No. 32 (D.D.C. Sept. 9, 2009). A dismissal for lack of subject matter jurisdiction does not
constitute adjudication on the merits with claim preclusive effect. See Miller v. Saxbe, 396 F.
Supp. 1260, 1261 (D.D.C. 1975) (“Such a dismissal on jurisdictional grounds is not ‘on the
merits’ for res judicata purposes and consequently is ‘without prejudice’ to a subsequent action
raising the same or similar underlying facts if different grounds for jurisdiction are claimed.”)
(citing FED. R. CIV. P. 41(b)); see also 18A FED. PRAC. & PROC. JURIS. § 4436 (2d ed.) (“There is
little mystery about the res judicata effects of a judgment that dismisses an action for lack of
subject-matter or personal jurisdiction or for improper venue. Civil Rule 41(b) provides that a
dismissal for lack of jurisdiction or improper venue does not operate as an adjudication upon the
merits.”). Thus, in this initial action, the D.C. Whistleblower Protection Act and Intentional
Infliction of Emotional Distress claims were not adjudicated on the merits. However, these two
claims were alternative theories for recovery under the same facts as the First Amendment claim,
which was adjudicated on the merits. Thus, an adjudication on the merits of the First
Amendment claim encompassed all of the factual allegations that these two other claims were
based on, for purposes of res judicata.
Even if that were not the case, all of Plaintiff’s counts against the District were ultimately
adjudicated on the merits in Hoffman v. Lanier. In that case, the plaintiffs brought 15 counts,
including one for Intentional Infliction of Emotional Distress and one for violation of the D.C.
Whistleblower Protection Act (and this count was brought by Plaintiff only). See Counts IV &
XI, Am. Compl., Hoffman v. Lanier, No. 08-1924, ECF No. 2. Though the Plaintiff was one of
eight plaintiffs, and his main issue in that lawsuit was the July 31, 2008 raid on his Georgia
Avenue property, Plaintiff in that action still raised the same allegations against the District
26
regarding Lt. Smith, Lt. Nunnally, the metro bus accident, and the Plaintiff’s purported
termination. Am. Compl. ¶¶ 13‒19, 49. Importantly, Plaintiff also raised a claim against the
District under the D.C. Human Rights Act where he alleged that “Chief Lanier authorized a
series of discriminatory acts against Captain Gresham on account of his race (African-
American), and DENIED him promotion, sought to fire him and authorized raids on his property
and defamatory comments against him.” Am. Compl. ¶ 74 (emphasis added). All of the counts
against the District of Columbia 7 were ultimately dismissed for plaintiffs’ failure to respond to
the defendants’ dispositive motion. See Memorandum 13‒14, Hoffman v. Lanier, No. 08-1924,
ECF No. 44 (D.D.C. Feb. 4, 2010) (“[T]he plaintiffs have failed to respond to the District’s
arguments for dismissal of the plaintiffs’ claims against it. The plaintiffs have not offered any
excuse for their failure to respond in a timely fashion, nor have they moved for leave to late-file
an opposition. Accordingly, the court grants the District’s motion to dismiss as conceded and
dismisses all claims asserted against the District.”). Courts have found conceded motions to be
dismissals on the merits for purposes of res judicata. See Sae Young Kim v. Nat’l Certification
Comm’n for Acupuncture & Oriental Med., 888 F. Supp. 2d 78, 82 (D.D.C. 2012) (“Although
the motion was treated as conceded pursuant to Local Civil Rule 7(b), it was a final valid
judgment on the merits . . . . [T]hus, res judicata applies, barring plaintiffs from relitigating their
claims.”) (internal citations omitted); Porter v. U.S. Capitol Police Bd., 816 F. Supp. 2d 1, 5
(D.D.C. 2011) (“Granting a motion as conceded constitutes a final judgment on the merits for
claim-preclusion purposes because the parties had a full and fair opportunity to litigate the claim
7
Before deciding the District of Columbia’s motion to dismiss, the district court
granted the United States’ motion to dismiss all counts—partly on jurisdictional grounds and
partly for failure to state a claim. See Order, Hoffman v. Lanier, No. 08-1924, ECF No. 34
(D.D.C. Aug. 17, 2009). Because the United States is not a party to the current action, the Court
need not elaborate on that disposition but provides the information by way of background.
27
in the prior action.”); Calica v. Comm’r of Soc. Sec., 601 F. Supp. 2d 203, 205 (D.D.C. 2009)
(“[B]ecause [plaintiff] did not respond to the defendant’s motion to dismiss . . . she was deemed
to have conceded the matters raised in the defendant’s motion . . . and an order of dismissal was
entered that was based on the merits of the case . . . . ”); Poblete v. Indymac Bank, 657 F. Supp.
2d 86, 91 (D.D.C. 2009) (“The fact that Poblete I was dismissed as conceded pursuant to Local
Civil Rule 7(b) is of no moment, given that the purpose of claim preclusion is ‘to preclude
parties from contesting matters that they have had a full and fair opportunity to litigate.’”)
(emphasis added by citing court) (quoting Montana v. United States, 440 U.S. 147, 153 (1979));
Cf. Proctor v. Millar Elevator Svc. Co., 8 F.3d 824, 824 (D.C. Cir. 1993) (explaining that under
Federal Rule of Civil Procedure 41(b), “a dismissal for failure to prosecute ‘operates as an
adjudication upon the merits’ unless the district court in its order ‘otherwise specifies.’”).
Ultimately, then, all of Plaintiff’s claims—for retaliation under any legal theory, hostile work
environment under any legal theory, and discrimination under the DC Human Rights Act—were
dismissed on the merits. Accordingly, this prong of the res judicata test is also satisfied, and all
of Plaintiff’s claims are barred on res judicata grounds.
In sum, Count II arises from the same nucleus of facts as Plaintiff’s prior actions, and the
remaining counts—though adding comparator evidence that post-date Plaintiff’s other
lawsuits—likewise arise from the same nucleus of facts because they represent Plaintiff’s
attempt to bolster retaliation, discrimination, and hostile work environment claims that already
could have and already should have been brought in his prior suits. In addition, the parties are in
28
privity with one another, and Plaintiff’s prior lawsuits have been adjudicated on the merits. As
such, this entire action is barred by res judicata, and judgment will be entered for the District. 8
IV. CONCLUSION
For the foregoing reasons, the District’s motion for summary judgment is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 5, 2014 RUDOLPH CONTRERAS
United States District Judge
8
In the alternative, the District argues that the Plaintiff’s 42 U.S.C. §§ 1981 and
1983 claims fail to state a claim, and that no reasonable jury could find for Plaintiff on his Title
VII claims. Though discovery is now over, the parties have not provided the Court with enough
analysis to properly assess these arguments. Because the Court relies upon res judicata as a
basis upon which to enter judgment for the District, it need not delve into the merits.
29