                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0170p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                                                 -
 BETTY JEAN BRAGG,
                                                 -
                              Plaintiff-Appellant,
                                                 -
                                                 -
                                                     No. 08-1632
          v.
                                                 ,
                                                  >
                                                 -
                      Defendants-Appellees. -
 FLINT BOARD OF EDUCATION, et al.,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
                  No. 08-10671—John Feikens, District Judge.
                                Submitted: April 30, 2009
                           Decided and Filed: May 13, 2009
            Before: KENNEDY, GIBBONS, and ROGERS, Circuit Judges.

                                   _________________
                                       COUNSEL
ON BRIEF: Shelley A. Stasson, LAW OFFICE, West Bloomfield, Michigan, for
Appellant. Mary Massaron Ross, Hilary Ann Dullinger, PLUNKETT COONEY, Detroit,
Michigan, for Appellees.
                                   _________________

                                        OPINION
                                   _________________

        KENNEDY, Circuit Judge. Plaintiff Betty Jean Bragg appeals the district court’s
order granting defendants Flint Board of Education, Flint Community Schools, Walter
Milton, Linda Thompson, and Mary Madden’s motion for summary disposition. Because
we agree that plaintiff’s claims in this subsequent action are barred by the doctrine of res
judicata, we AFFIRM the district court’s order and dismiss plaintiff’s claims.




                                             1
No. 08-1632          Bragg v. Flint Board of Education, et al.                           Page 2


                                      BACKGROUND

        On January 20, 2008, plaintiff filed a complaint in the Genesee County Circuit Court
against the Flint Board of Education, the Flint Community Schools, the United Teachers of
Flint, Inc., and three individual defendants. In this complaint, she alleged six counts,
including (1) Breach of Contract; Breach of Employment Agreement; (2) Breach of Union
Contract, Improper Usage of Union Procedures; (3) Wrongful Discharge; (4) Wrongful
Termination of Employment; (5) Violations of Title VII and the Elliot-Larsen Civil Rights
Act; and (6) Misrepresentation/Nondisclosure and Failure to Transmit Forms and
Information Re Union Procedures, Grievances, and Appeals by Defendant United Teachers
of Flint. Five of the counts were identical to counts she had alleged in a 2007 lawsuit against
the exact same defendants. The 2007 lawsuit, after being removed to federal court, was
dismissed on August 8, 2007, for lack of progress pursuant to Federal Rule of Civil
Procedure 41(b). Her 2008 lawsuit, at issue in the present case, was similarly removed to
federal court. Defendants Flint Community Schools, the Flint Board of Education, Milton,
Thompson, and Madden moved for summary judgment, arguing that because of the decision
reached in the 2007 suit, the present claims were barred by res judicata. The district court
granted summary judgment to defendants. Plaintiff appealed to our court.

                                         ANALYSIS

        I. Standard of Review

        We review de novo a district court’s application of the doctrine of res judicata. See
Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994).

        II. Res Judicata

        Plaintiff argues that because the district court’s 2007 dismissal of her claims under
Federal Rule of Civil Procedure 41(b) for lack of progress does not constitute “an
adjudication on the merits,” it should not be given preclusive effect. Under the clear
language of Rule 41(b) and our court’s interpretation of that rule, the district court’s decision
was an adjudication on the merits and should be given preclusive effect. Accordingly, we
AFFIRM the ruling of the district court.
No. 08-1632          Bragg v. Flint Board of Education, et al.                           Page 3


        Pursuant to the doctrine of res judicata, “a final judgment on the merits bars further
claims by parties or their privies based on the same cause of action.” Montana v. U.S., 440
U.S. 147, 153 (1979) (citations omitted). For res judicata to apply, the following elements
must be present:

        (1) a final decision on the merits by a court of competent jurisdiction; (2) a
        subsequent action between the same parties or their “privies”; (3) an issue
        in the subsequent action which was litigated or which should have been
        litigated in the prior action; and (4) an identity of the causes of action.
Bittinger v. Tecumseh Products Co., 123 F.3d 877, 880 (6th Cir. 1997).

        Plaintiff’s argument that the district court’s dismissal of her 2007 lawsuit was not “a
final decision on the merits” is refuted by the plain language of Rule 41(b) and by the clear
precedent of our court. Because plaintiff’s 2007 claims were dismissed pursuant to Federal
Rule of Civil Procedure Rule 41(b), the first element required for res judicata to apply was
clearly met in this case. By its plain language, an involuntary dismissal under Federal Rule
of Civil Procedure 41(b) constitutes an adjudication on the merits and carries preclusive
effect. Rule 41(b) states:

        If the plaintiff fails to prosecute or to comply with these rules or a court
        order, a defendant may move to dismiss the action or any claim against it.
        Unless the dismissal order states otherwise, a dismissal under this
        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.
FED. R. CIV. P. 41(b) (emphasis added). The district court dismissed plaintiff’s 2007 claims
pursuant to Rule 41(b). In doing so, the district court did not specify that its order would not
operate as an adjudication on the merits. Nor did the court include any information limiting
the order’s preclusive effect.

        In addition to the language of the Rule, our court has interpreted similar orders to
have preclusive effect. In Stelts v. University Emergency Specialists, Inc., 20 F. App’x 448
(6th Cir. 2001), the district court dismissed, for lack of prosecution, a former employee’s suit
alleging that he was improperly forced to resign. In our unpublished opinion, we held that
because the district court’s decision constituted a final judgment on merits, the plaintiff's
No. 08-1632           Bragg v. Flint Board of Education, et al.                        Page 4


claims in a subsequent action based on the same allegations were barred by res judicata. Id.
at 449.

          A comparison of the pleadings in the 2007 case and the present case reveals that the
three additional elements necessary to res judicata are indeed satisfied. First, both actions
involve identical parties. Plaintiff brought her 2007 claim against the Flint Board of
Education, Walter Milton, Flint Community Schools, Linda Thompson, Mary Madden, and
the United Teachers of Flint, Inc. Her 2008 complaint lists the exact same parties as
defendants. Second, the present action raises issues which were, or could have been,
asserted in her 2007 action. Bragg’s 2007 complaint alleged five counts, all arising out of
the discrimination that she alleged resulted in her suspension and subsequent dismissal from
Flint Community Schools. Bragg’s 2008 complaint involved six counts, five of which were
identical to those alleged in the 2007 complaint. The only additional claim she alleged was
for misrepresentation and nondisclosure. The doctrine of res judicata prohibits not only
re-litigation of all claims or issues which were actually litigated, but also those which could
have been litigated in a prior action. See Gargallo v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 918 F.2d 658, 660-61 (6th Cir. 1990).          The claim for misrepresentation and
nondisclosure of union procedures arose out of the same set of facts as did the first five
counts she had alleged and involved the same time period. Accordingly, the claim could and
should have been litigated in her prior suit.     Finally, the very same discriminatory acts
alleged in the 2007 complaint were alleged in the present case. Thus, the fourth requirement
of res judicata is satisfied.

          Based on the language of Rule 41(b) and on our court’s existing precedent, there has
been a final decision on the merits and all elements of the res judicata test have been met in
this case. Accordingly, plaintiff’s claims in this action are barred by application of the
doctrine of res judicata.

                                       CONCLUSION

          For the foregoing reasons, we AFFIRM the ruling of the district court.
