UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SAMUEL MCGEE, : : Plaintiff, : Civil Action No.: 07-2310 (RMU) : : v. : Re Document No.: 18 : DISTRICT OF COLUMBIA, : : Defendant. :
MEMORANDUM OPINION
DENYING THE PLAINTIFF’S MOTION FOR LEAVE TO AMEND AND DISMISSING THE PLAINTIFF’S COMPLAINT SUA SPONTE BASED ON RES JUDICATA
I. INTRODUCTION
This matter is before the court on the plaintiff’s motion for leave to amend the complaint.
The plaintiff seeks to supplement the Title VII claims asserted in his original complaint with
claims for violation of the D.C. Whistleblower Act, D.C. Code §§ 1-615.51 et seq., breach of
contract and intentional infliction of emotional distress (“IIED”). The plaintiff also seeks to
supplement the Title VII claims asserted in his original complaint with additional allegations of
discrimination and retaliation.
The defendant asserts that leave to amend should be denied because the claims that the
plaintiff seeks to add have no possibility of success. The court agrees. Accordingly, the court
denies the plaintiff’s motion for leave to amend the complaint to assert the Whistleblower,
breach of contract and IIED claims.
As for the plaintiff’s Title VII claims, the plaintiff previously asserted identical claims in
a complaint brought before another court in this district. Because that court dismissed the complaint, this court denies leave to amend with respect to the plaintiff’s Title VII claims and
dismisses his original complaint sua sponte on res judicata grounds.1
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff, an African American male, is a detective with the District of Columbia
Metropolitan Police Department (“MPD”). Pl.’s Mot. at 1; Pl.’s Reply at 1. He alleges that on
or about January 25, 2005, he assisted police officers who had participated in an employment
discrimination lawsuit filed against the District of Columbia in January 2005.2 Am. Compl. ¶ 5.
The EEOC action was settled via mediation on May 10, 2005, pursuant to an agreement that
forbade the defendant from retaliating against the plaintiff. Id.
The plaintiff asserts that after he participated in the EEOC action, the defendant
“commenced a continuing pattern of retaliation” against him. Id. ¶ 6. The alleged acts of
retaliation include failing to promote the plaintiff to the rank of Sergeant even though he had
passed the Sergeant’s Test and had been selected for promotion, lodging unwarranted allegations
of misconduct against him and reassigning him to another position in violation of the applicable
collective bargaining agreement.3 Id. ¶¶ 6, 7(a)-(g). The plaintiff alleges that as a result of his
negative experiences at work, he has received counseling and therapy and has been diagnosed
with depression anxiety. Id. ¶ 7(f).
1 Although the plaintiff sought to add the United States as a defendant to the action, Am. Compl. ¶ 3, on July 21, 2009, the plaintiff filed a consent motion seeking to remove the United States as a defendant. See generally Pl.’s Second Mot. to Amend. Because none of the claims in the proposed amended complaint would survive a motion to dismiss, whether the United States is a proper party defendant is irrelevant. 2 Although the plaintiff claims that he “was a party to” the lawsuit that arose from these conflicts, Am. Compl. ¶ 5, he is not listed as a plaintiff in any of the pleadings or opinions related to that case, see generally Giardino v. District of Columbia, 252 F.R.D. 18 (D.D.C. 2008). 3 All but two of the alleged acts of retaliation occurred prior to 2007. See Am. Compl. ¶¶ 5-7(g). The alleged retaliatory acts that took place after 2007 involve a reprimand issued against the plaintiff on June 27, 2008 and the failure to timely process a request for sick leave submitted on July 11, 2008. Id. ¶ 7(f)-(g).
2 The plaintiff filed a complaint in this district on April 19, 2006, alleging unlawful race
discrimination and retaliation under Title VII, docketed as Civil Action No. 06-0705. Compl.,
McGee v. District of Columbia, 2006 WL 2598264 (D.D.C. Sept. 11, 2006) (No. 06-0705). On
September 11, 2006, that complaint was dismissed by Judge Richard J. Leon on the grounds that
the plaintiff had failed to exhaust his administrative remedies. McGee, 2006 WL 2598264, at *1-
2.
On December 21, 2007, the plaintiff commenced this action by filing a complaint
identical to the one dismissed by Judge Leon, still without the required letter from the EEOC.
Compl. Because the plaintiff failed to indicate to the Clerk of the Court that his complaint was
related to a previous action in the district, the complaint came before this court, which was not
alerted to the existence and previous dismissal of Civil Action No. 06-0705. See Compl., Attach.
1 (Civil Cover Sheet).
The defendant answered the complaint on February 21, 2008. After obtaining new
counsel in October 2008, see Pl.’s Reply at 2, on October 24, 2008, the plaintiff notified Mayor
Adrian Fenty by letter of his grievances against the District of Columbia, see Pl.’s Reply, Ex. B
(“Fenty Letter”) at 4. The letter expressed the plaintiff’s intention to amend his complaint if the
matter could not be resolved within 30 days. Id. The mayor did not respond, and the plaintiff
filed a motion for leave to amend the complaint on December 8, 2008. Pl.’s Reply at 2. After
the motion was stricken for failing to comply with Local Civil Rule 7(i),4 the plaintiff filed the
instant motion for leave to amend on December 15, 2008.
4 Local Civil Rule 7(i) requires that “[a] motion for leave to file an amended pleading shall be accompanied by an original of the proposed pleading as amended.” Banks v. Kramer, 603 F. Supp. 2d 3, 6 (D.D.C. 2009).
3 III. ANALYSIS
A. The Court Denies the Plaintiff’s Motion for Leave to Amend the Complaint
1. Legal Standard for Granting Leave to Amend a Complaint
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a
matter of course at any time before a responsive pleading is served. FED. R. CIV. P. 15(a).
Additionally, Rule 15(a) allows a party to amend its pleading to add a new party.5 Id.; Wiggins
v. Dist. Cablevision, Inc., 853 F. Supp. 484, 499 (D.D.C. 1994); 6 FED. PRAC. & PROC. 2d
§ 1474. According to decisions of this circuit, Rule 15(a) “guarantee[s] a plaintiff an absolute
right” to amend the complaint once at any time so long as the defendant has not served a
responsive pleading and the court has not decided a motion to dismiss. James v. Hurson Assocs.,
Inc. v. Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000) (citing Fed. R. Civ. P. 15(a)). If there is
more than one defendant, and not all have served responsive pleadings, the plaintiff may amend
the complaint as a matter of course with regard to those defendants that have yet to answer. 6
FED. PRAC. & PROC. 2d § 1481. Motions to dismiss and for summary judgment do not qualify as
responsive pleadings for the purposes of Rule 15. James, 229 F.3d at 283; Bowden v. United
States, 176 F.3d 552, 555 (D.C. Cir. 1999); U.S. Info. Agency v. Krc, 905 F.2d 389, 399 (D.C.
Cir. 1990).
5 A motion to amend a complaint to add a party may also implicate Federal Rules of Civil Procedure 20 and 21, which govern joinder. Oneida Indian Nation v. County of Oneida, 199 F.R.D. 61, 72 (N.D.N.Y. 2000). Once a responsive pleading has been served, however, the standard for adding a party is the same regardless of the rule under which the motion is made: the decision lies within the discretion of the court. Wiggins v. Dist. Cablevision, Inc., 853 F. Supp. 484, 499 n.29 (D.D.C. 1994) (stating that “[i]t is well established that after a responsive pleading has been served, the standards for adding parties are the same whether the motion is made under Rule 15 or Rule 21”); Oneida Indian Nation, 199 F.R.D. at 72 (noting that “in practical terms there is little difference between [Rules 15, 20, and 21] in that they all leave the decision whether to permit or deny amendment to the district court’s discretion”); 6 FED. PRAC. & PROC. 2d § 1474 (indicating that “the same basic standard for adding or dropping a party will apply whether the pleader moves under Rule 15(a) or Rule 21”).
4 Once a responsive pleading is served, however, a plaintiff may amend the complaint only
by leave of the court or by written consent of the adverse party. FED. R. CIV. P. 15(a); Foman v.
Davis, 371 U.S. 178, 182 (1962). The grant or denial of leave lies in the sound discretion of the
district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The court must,
however, heed Rule 15’s mandate that leave is to be “freely given when justice so requires.” Id.;
Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1083 (D.C. Cir. 1998).
Indeed, “[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman,
371 U.S. at 182. Denial of leave to amend therefore constitutes an abuse of discretion unless the
court gives sufficient reason, such as futility of amendment, undue delay, bad faith, dilatory
motive, undue prejudice or repeated failure to cure deficiencies by previous amendments. Id.;
Caribbean Broad. Sys., 148 F.3d at 1083.
A court considering a motion to amend a complaint should evaluate the amendment’s
effect on judicial resources and the judicial system. 3 FED. PRAC. § 5.15[1]; see also Childers v.
Mineta, 205 F.R.D. 29, 33 (D.D.C. 2001) (concluding that granting leave to amend and thereby
combining two civil actions would promote judicial economy).
Denial of leave to amend based on futility is warranted if the proposed claim would not
survive a motion to dismiss. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996). An amended complaint is futile if it merely restates the same facts as the original
complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a
legal theory or could not withstand a motion to dismiss. Robinson v. Detroit News, Inc., 211 F.
Supp. 2d 101, 114 (D.D.C. 2002) (quoting 3 FED. PRAC. 3d § 15.15[3]); Willoughby v. Potomac
Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) (affirming the district court’s denial of
5 leave to amend given the “little chance” that plaintiff would succeed on his claim); Moldea v.
N.Y. Times Co., 22 F.3d 310, 319 (D.C. Cir. 1994) (holding that the district court properly denied
leave to amend because “the amended Complaint could not withstand a motion to dismiss, and so
would be futile”).
2. The Plaintiff’s Whistleblower and Tort Claims
a. Legal Standard for D.C. Code § 12-309
D.C. Code § 12-309 provides that “[a]n action may not be maintained against the District
of Columbia for unliquidated damages to person or property unless, within six months after the
injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to
the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances
of the injury or damage.” D.C. CODE § 12-309. Courts agree that this statute requires plaintiffs
to provide the statutory notice before filing a complaint. See Parker v. Grand Hyatt Hotel, 124
F. Supp. 2d 79, 90 (D.D.C. 2000) (interpreting § 12-309 to provide that “[b]efore filing a lawsuit
against the District of Columbia for unliquidated damages, a claimant must file notice with the
mayor within six months of the alleged injury”); Campbell v. District of Columbia, 568 A.2d
1076, 1078 (D.C. 1990) (holding that “[t]he explicit requirement of the statute that ‘the claimant
. . . has given notice in writing,’ expressed in the perfect tense, makes it plain that notice must
have been given before suit”) (internal citations omitted); Gwinn v. District of Columbia, 434
A.2d 1376, 1378 (D.C. 1981) (holding that “notice under § 12-309 is a ‘condition precedent’ to
filing a suit against the District”) (citing Wilson v. District of Columbia, 338 A.2d 437, 438 (D.C.
1975)).
6 b. The Court Denies the Plaintiff’s Motion for Leave to Amend with Respect to the Whistleblower and IIED Claims Because the Plaintiff did not Comply with § 12-309
The defendant asserts that the plaintiff’s D.C. Whistleblower Act and IIED claims are
barred because the plaintiff did not satisfy the notice requirement set forth in D.C. Code § 12-
309.6 Def.’s Opp’n at 4. The plaintiff counters that § 12-309 does not apply to his claims
because he is not seeking unliquidated damages and that, at any rate, he provided the necessary
notice to the mayor. Pl.’s Reply at 3-7.
Although the plaintiff contends that § 12-309 does not apply to his whistleblower claim,
id. at 5-7, the D.C. Whistleblower Act explicitly requires plaintiffs to comply with the notice
requirement of § 12-309, D.C. CODE § 1-615.54(a) (providing that “[a] civil action brought
pursuant to this section shall comply with the notice requirements of § 12-309”). This Circuit
has held that this provision mandates statutory notice for all claims brought under the D.C.
Whistleblower Act, regardless of whether they seek unliquidated damages, because otherwise the
language in the Whistleblower Act would be “redundant with section 12-309, which already
applies its notice requirements to any claim for unliquidated damages in the District.” Winder v.
Erste, 566 F.3d 209, 213-14 (D.C. Cir. 2009) (affirming the dismissal of the plaintiff’s claim for
back pay and an injunction under the D.C. Whistleblower Act for failure to comply with the
notice requirement of § 12-309) (internal citations omitted). The plaintiff, therefore, is incorrect
when he asserts that § 12-309 does not apply to his whistleblower claim.
It is equally clear that the notice requirement of § 12-309 applies to the plaintiff’s IIED
claims. See Kirkland v. District of Columbia, 70 F.3d 629, 631 (D.C. Cir. 1995) (applying the
6 The defendant also asserts that the plaintiff has failed to comply with the notice requirement of the Whistleblower Act itself, which requires that the complaint be filed “within one year after the violation occurs or within one year after the employee becomes aware of the violation.” Def.’s Opp’n at 3-4 (citing D.C. CODE § 1-615.54(a)). Because the court denies leave to add these claims based on § 12-309, the court will not address the one-year notice requirement of the D.C. Whistleblower Act.
7 notice requirement of § 12-309 to the plaintiff’s IIED claim); accord Barnhardt v. District of
Columbia, 601 F. Supp. 2d 324, 330-31 (D.D.C. 2009); Chisholm v. District of Columbia, 553 F.
Supp. 2d 175, 179 (D.D.C. 2008) (noting that plaintiffs cannot recover on an IIED claim unless
they fulfill the notice requirement of § 12-309) (citing Beeton v. District of Columbia, 779 A.2d
918, 925 (D.C. 2001)). Like the plaintiffs in the above cases, the plaintiff here fails to articulate
how his damages for IIED are fixed at a certain amount. See generally Am. Compl.; Pl.’s Reply.
Thus, the plaintiff’s contention that § 12-309 does not apply to his whistleblower and tort claims
lacks merit.
Nor did the plaintiff comply with § 12-309 by mailing his October 24, 2008 letter to
Mayor Fenty. Section 12-309 requires plaintiffs to notify the mayor “within six months after the
injury or damage was sustained.” D.C. CODE § 12-309. Yet all but two of the adverse actions
underlying the plaintiff’s whistleblower and IIED claims occurred prior to 2007, more than a
year before the letter was mailed. See Am. Compl. ¶¶ 5-7(g). Accordingly, the claims premised
on these acts are barred for failure to timely provide the required statutory notice.
As for the two alleged acts that took place within the statutory notice period, the claims
premised on these acts are barred because the plaintiff did not provide notice to the mayor until
after filing his lawsuit. Although § 12-309 requires plaintiffs to notify the mayor “[b]efore filing
a lawsuit against the District of Columbia,” Parker, 124 F. Supp. 2d at 90, the plaintiff did not
mail his notice letter until after he had filed his first complaint with Judge Leon and his second
(identical) complaint with this court, see Fenty Letter. Thus, the plaintiff’s proposed
whistleblower and IIED claims would be barred for failure to provide the required statutory
notice and would not survive a motion to dismiss. Consequently, the court denies leave to
amend with respect to these claims.
8 3. The Plaintiff’s Contract Claims
a. Legal Standard for Duplication of Claims
Courts typically dismiss contract claims that duplicate contemporaneously-filed
discrimination or retaliation claims. See Anderson v. New York, 2009 WL 1176618, at *17
(S.D.N.Y. Apr. 27, 2009) (holding that the plaintiff’s breach of contract claim “is duplicative of
plaintiff’s . . . retaliation claim and must be dismissed”); King v. Enterprise Leasing Co. of DFW,
2006 WL 2005541, at *16 (N.D. Tex. July 11, 2007) (dismissing the plaintiff’s breach of
contract claim as “essentially a contractual overlay on, and duplicative of, her retaliation claim”);
Hamdy v. County of Niagra, 2007 WL 295325, at *1-2 (W.D.N.Y. Jan. 20, 2007) (holding that
“[b]ecause the plaintiff’s breach of contract claim is duplicative of his retaliation claims and
affords him no greater relief than he would get under those claims, the Court declines to exercise
supplemental jurisdiction over the breach of contract claim at this juncture” because doing so
“would be cumulative, a waste of time and too confusing”); Horizon Holdings, L.L.C. v. Genmar
Holdings, Inc., 241 F. Supp. 2d 1123, 1147 (D. Kan. 2002) (holding that because “[the
plaintiff]’s contract theory seems to be entirely duplicative of his Title VII retaliation claim . . .
the court dismisses as duplicative [the plaintiff’s] breach of contract claim to the extent that
claim is based on the theory that the breach stemmed from defendants’ alleged termination of
[the plaintiff] in retaliation for engaging in activity protected under Title VII”); see also Norment
Sec. Group, Inc. v. Travelers Casualty & Ins. Co., 505 F. Supp. 2d 97, 103 (D.D.C. 2007)
(holding that “[t]o maintain a tort claim in addition to a breach of contract claim, a plaintiff must
either: (i) demonstrate a legal duty separate from the duty to perform under the contract; (ii)
demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek
special damages that are caused by the misrepresentation and unrecoverable as contract
9 damages”); accord Regency Commc’ns, Inc. v. Cleartel Commc’ns, Inc., 160 F. Supp. 2d 36, 42
(D.D.C. 2001).
The fact that claims in an amended complaint are based on the same legal duties or facts
asserted in the original complaint is grounds for denying leave to amend. See City of
Moundridge v. Exxon Mobil Corp., 250 F.R.D. 1, 7 (D.D.C. 2008) (holding that “[f]ailing to
allege new facts or offering a duplicative amendment can be grounds for denying leave to
amend”); Wiggins v. District Cablevision, Inc., 853 F. Supp. 484, 499 (D.D.C. 1994) (denying
the plaintiff’s motion for leave to amend because, although the plaintiff asserted two new causes
of action, he asserted no new material facts to support them).
b. The Court Denies the Plaintiff’s Motion for Leave to Amend with Respect to His Proposed Contract Claims Because They Duplicate His Retaliation Claims
The Amended Complaint states that the defendant breached the express terms of the
EEOC settlement agreement and the implied terms of the plaintiff’s employment by retaliating
against the plaintiff for his participation in protected activity. Am. Compl. ¶¶ 14-20. The
defendant asserts that the court should deny leave to amend with respect to these contract claims
because they are duplicative of the plaintiff’s Title VII claims. Def.’s Opp’n at 4. The plaintiff
responds, without elaboration, that his contract claims are not duplicative. Pl.’s Reply at 5.
In his Title VII claims in the Amended Complaint, the plaintiff asserts discrimination and
retaliation based on the defendant’s failure to promote him, the fact that he was transferred to a
new workplace and a generalized allegation of a retaliatory hostile work environment. Am.
Compl. ¶¶ 21-23. The plaintiff’s contemporaneously-filed contract claims are based on the same
factual allegations – the failure to promote, the reassignment and a generalized retaliation claim
– and breach of the same legal duty – namely, the duty to refrain from discriminating and
retaliating against the plaintiff. Id. ¶¶ 14-20. Because the contract claims are based on the same
10 facts, legal duties and injuries that underlie the plaintiff’s Title VII claims, the plaintiff’s contract
claims duplicate his Title VII claims and would be subject to dismissal. See, e.g., Anderson, 2009
WL 1176618, at *17; King, 2006 WL 2005541, at *16. The court thus denies leave to amend
with respect to the contract claims. Foman, 371 U.S. at 182; James Madison, 82 F.3d at 1099.
B. The Court Dismisses the Plaintiff’s Title VII Claims Under Res Judicata
1. Legal Standard for Res Judicata
“The doctrine of res judicata prevents repetitious litigation involving the same causes of
action or the same issues.” I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944,
946 (D.C. Cir. 1983). Res judicata has two distinct aspects – claim preclusion and issue
preclusion (commonly known as collateral estoppel) – that apply in different circumstances and
with different consequences to the litigants. NextWave Pers. Commc’ns, Inc. v. Fed. Commc’ns
Comm’n, 254 F.3d 130, 142 (D.C. Cir. 2001); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C.
Cir. 1983).
Under claim preclusion, “a final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have been raised in that action.” Drake
v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449 U.S.
90, 94 (1980)). “Whether two cases implicate the same cause of action turns on whether they
share the same ‘nucleus of facts.’” Id. (quoting Page v. United States, 729 F.2d 818, 820 (D.C.
Cir. 1984)). In making that determination, courts look at “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.”
Stanton v. D.C. Ct. of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997) (quoting RESTATEMENT
(SECOND) OF JUDGMENTS § 24(2) (1982)).
11 Under issue preclusion or collateral estoppel, “once a court has decided an issue of fact or
law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a
different cause of action involving a party to the first case.” Yamaha Corp. of Am. v. United
States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen, 449 U.S. at 94). Issue preclusion
applies if three criteria are met: (1) if in the prior litigation, the issue was “actually litigated, that
is, contested by the parties and submitted for determination by the court;” (2) if the prior
litigation was “actually and necessarily determined by a court of competent jurisdiction;” and (3)
if “preclusion in the second trial [does] not work an unfairness.” Otherson v. Dep’t of Justice,
711 F.2d 267, 273 (D.C. Cir. 1983).
In short, “claim preclusion forecloses all that which might have been litigated
previously,” while issue preclusion “prevents the relitigation of any issue that was raised and
decided in a prior action.” I.A.M. Nat’l Pension Fund, 723 F.2d at 949; Novak, 703 F.2d at 1309.
In this way, res judicata helps “conserve judicial resources, avoid inconsistent results, engender
respect for judgments of predictable and certain effect, and [] prevent serial forum-shopping and
piecemeal litigation.” Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); see also
Allen, 449 U.S. at 94.
Because “res judicata belongs to courts as well as to litigants,” a court may invoke res
judicata sua sponte. Stanton, 127 F.3d at 77; see also Tinsley v. Equifax Credit Info. Servs., Inc.,
1999 WL 506720, at *1 (D.C. Cir. 1999) (per curiam) (noting that a district court may apply res
judicata upon taking judicial notice of the parties’ previous case); Nader v. McAuliffe, 593
F. Supp. 2d 95, 100 (D.D.C. 2009) (holding that “a court may invoke res judicata sua sponte”)
(internal citations omitted); Sieverding v. Am. Bar Ass’n, 439 F. Supp. 2d 120, 123 (D.D.C.
2006) (same) (internal citations omitted).
12 2. The Court Sua Sponte Dismisses the Plaintiff’s Title VII Claims on Res Judicata Grounds
It is widely accepted that a plaintiff’s failure to exhaust administrative remedies in a Title
VII action – specifically where the plaintiff does not obtain a valid right to sue letter – triggers
res judicata in subsequent lawsuits. Wakefield v. Cordis Corp., 304 Fed. Appx. 804, 805-06
(11th Cir. Dec. 22, 2008) (applying res judicata to the subsequent suit because the plaintiff’s
previous Title VII suit was dismissed for failure to obtain the required right to sue letter from the
EEOC); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 710 (9th Cir. 2001)
(dismissing the plaintiff’s subsequent suit based on res judicata because he had failed to obtain
the required right to sue letter from the EEOC before commencing his first suit); Boateng v.
InterAmerican Univ., Inc., 210 F.3d 56, 62 (1st Cir. 2000) (applying res judicata to the plaintiff’s
subsequent Title VII claim where he did not raise Title VII in the previous suit because he had
not received a right to sue letter from the EEOC); accord Miller v. U.S. Postal Serv., 825 F.2d
62, 64 (5th Cir. 1996); Woods v. Dunlop Tire Corp., 972 F.2d 36, 37 (2d Cir. 1992) (applying res
judicata to the plaintiff’s subsequent Title VII claim where he did not raise Title VII in the
previous suit because he had not exhausted his administrative remedies with the EEOC); Gelin v.
Geithner, 2009 WL 804144, at *7 (S.D.N.Y. Mar. 26, 2009) (applying res judicata to the
plaintiff’s subsequent claim alleging failure to promote where his previous Title VII claim
alleging the same facts was dismissed for failure to exhaust administrative remedies with the
EEOC); Marshall v. Nat’l Ass’n of Letter Carriers BR36, 2004 WL 2202574, at *3 (S.D.N.Y.
Sept. 30, 2004) (applying res judicata where the plaintiff had not obtained a right to sue letter
from the EEOC in his previous two suits and holding that “a plaintiff awaiting exhaustion of a
claim is not insulated from the operation of res judicata”) (citing Woods, 972 F.2d at 41); Sims-
Eiland v. Detroit Bd. Of Educ., 173 F. Supp. 2d 682, 684 (E.D. Mich. 2001) (applying res
13 judicata to the plaintiff’s discrimination claims because they had been previously dismissed for
failure to exhaust administrative remedies with the EEOC); Dillard v. Henderson, 43 F. Supp. 2d
367, 368 (S.D.N.Y. 1999) (applying res judicata where the plaintiff’s first claim had been
dismissed for failure to exhaust administrative remedies with the EEOC).
Judge Leon dismissed the plaintiff’s complaint for failing to exhaust administrative
remedies because the plaintiff failed to obtain a right to sue letter from the EEOC prior to
commencing that suit. McGee, 2006 WL 2598264, at *1-2 (holding that “the plaintiff’s claims
must be dismissed because he has not exhausted his administrative remedies, namely, that he has
participated in the EEOC process up to the point of the issuance of an appropriate right to sue
letter by the EEOC”) (citing Jones v. District of Columbia, 273 F. Supp. 2d 61, 64 (D.D.C
2003)). The plaintiff has not alleged, in his proposed Amended Complaint or in his previous
complaint, that he ever obtained a valid right to sue letter from the EEOC. See Compl.; Am.
Compl. Thus, the court applies res judicata, denies leave to amend with respect to the plaintiff’s
Title VII claims and dismisses the Title VII claims asserted in the prior complaint. As a result,
the court dismisses the plaintiff’s complaint in its entirety.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff’s motion for leave to amend the
complaint and dismisses the original complaint. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 21st day of August, 2009.
RICARDO M. URBINA United States District Judge