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Ashbourne v. Hansberry

United States Court of Appeals, District of Columbia Circuit

June 29, 2018

Anica Ashbourne, Appellant
v.
Donna Hansberry, Director, Global High Wealth, et al., Appellees

          Submitted April 3, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-00908)

          Anica Ashbourne, pro se, was on the briefs for appellant.

          Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Benton Peterson, Assistant U.S. Attorneys, were on the brief for appellees.

          Before: Tatel, Srinivasan and Millett, Circuit Judges.

          OPINION

          MILLETT, CIRCUIT JUDGE

         This 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 We now join every circuit court to have addressed that question, as well as a number of our own prior unpublished dispositions, and hold that res judicata applies to such Title VII claims, at least in the absence of a particularized showing that prosecuting or otherwise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.

         I

         In June 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.

         Ashbourne I

         Ashbourne 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.

         On the 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).

         The 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.

         On the 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 ...


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