United States Court of Appeals, District of Columbia Circuit
Submitted April 3, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cv-00908)
Ashbourne, pro se, was on the briefs for appellant.
K. Liu, U.S. Attorney, and R. Craig Lawrence and Benton
Peterson, Assistant U.S. Attorneys, were on the brief for
Before: Tatel, Srinivasan and Millett, Circuit Judges.
MILLETT, CIRCUIT JUDGE
appeal turns on the answer to a single question: Are Anica
Ashbourne's employment discrimination claims under Title
VII, 42 U.S.C. § 2000e et seq.,
subject to ordinary principles of res judicata, even
though at the time she filed her earlier suit she had not yet
received a notice of her right to sue for those claims? We
now join every circuit court to have addressed that question,
as well as a number of our own prior unpublished
dispositions, and hold that res judicata applies to
such Title VII claims, at least in the absence of a
particularized showing that prosecuting or otherwise
preserving the claims in the initial litigation was
infeasible. Because including Ashbourne's Title VII
claims in her initial litigation was entirely feasible, the
judgment of the district court is affirmed.
2010, the Department of the Treasury's Internal Revenue
Service hired Anica Ashbourne, a tax attorney and certified
public accountant, into its Global High Wealth division,
subject to a one-year probationary period. Shortly before her
probationary year expired, the IRS terminated Ashbourne for
having provided false or misleading information about her
employment history in the job application process. The
termination became final on May 28, 2011.
brought challenges related to her termination on two separate
fronts: She raised Title VII claims asserting race and gender
discrimination in a Treasury Department administrative
proceeding, and she pressed a number of other challenges tied
to her termination in federal court.
federal-court front, Ashbourne filed three separate lawsuits
in the United States District Court for the District of
Maryland between September 30 and November 30, 2011.
Ashbourne's first complaint alleged that the Treasury
Department and her former supervisors violated her
constitutional right to due process by jeopardizing her
chances for future employment without an evidentiary hearing.
Ashbourne v. Geithner, 8:11-cv-02818-RWT (D. Md.
Sept. 30, 2011). Her two subsequent complaints collectively
alleged violations of her statutory rights under the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et
seq., the Equal Pay Act, 29 U.S.C. § 206(d)(1), and
the Privacy Act, 5 U.S.C. § 552A. See Ashbourne v.
Geithner, 8:11-cv-03199-RWT (D. Md. Nov. 9, 2011);
Ashbourne v. Department of the Treasury,
8:11-cv-03456-RWT (D. Md. Nov. 30, 2011).
district court in Maryland consolidated all three complaints
into a single action. Ashbourne v. Geithner, 2012 WL
2874012, at *1 (D. Md. July 12, 2012). At no point did
Ashbourne raise any claims under Title VII in her
consolidated cases. See id.
administrative front, Ashbourne filed a complaint in November
2011 with the Treasury Department's equal employment
opportunity office, in which she alleged that her termination
and related events violated Title VII. Treasury denied her
administrative claim in December 2012, and informed Ashbourne
that she could either appeal that decision to the Equal
Employment Opportunity Commission ("EEOC") or file
a civil suit in district court. Ashbourne v.
Hansberry, 1:16-cv-908-CKK, ECF No. 6-2 (D.D.C. Aug. 18,
2016) ("Ashbourne II"). Treasury also