                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                 )
BARBARA NICHOLS,                                 )
                                                 )
               Plaintiff, pro se                 )
                                                 )
        v.                                       )   Civil No. 11-910 (RCL)
                                                 )
ERIC H. HOLDER, Attorney General,                )
                                                 )
              Defendant.                         )
                                                 )


                                   MEMORANDUM OPINION

        In her Revised Complaint, ECF No. 22, plaintiff Barbara Nichols asserts claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. arising out of her

employment at the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Defendant

Attorney General Eric Holder has moved to dismiss this complaint pursuant to Fed. R. Civ. P.

12(b)(6) and, in the alternative, to strike the revised complaint under Fed. R. Civ. P. 12(f).

Def.’s Mot., ECF No. 25. The Court will grant the Attorney General’s motion and will dismiss

Ms. Nichols’ revised complaint with prejudice.

   I.        BACKGROUND

        A. Factual Background

        For about 30 years, Ms. Nichols (an African-American female) worked for the ATF, an

agency now located within the Department of Justice (“DOJ”). See Nichols v. Holder (“Nichols

II”), 828 F. Supp. 2d 250, 252 (D.D.C. 2011); Pl.’s Rev. Compl. ¶ 2, ECF No. 22. For a time,

she worked at the Firearms and Explosives Operations Branch of ATF in Washington, D.C.. Id.

¶ 4.    At some point, she was reassigned to the Firearms and Explosive Services Division
(“FESD”). 1     That branch of ATF was relocated from Washington D.C. to Martinsburg, West

Virginia beginning in 2005. Rev. Compl. ¶ 29; see also Nichols v. Truscott (“Nichols I”), 424 F.

Supp. 2d 124, 129 (D.D.C. 2006). Ms. Nichols stopped working for ATF in 2007.

        B. Procedural Background

             1. Nichols I

        This is Ms. Nichols’ second employment discrimination action against ATF. In 2000,

Ms. Nichols filed an administrative complaint alleging employment discrimination in violation

of Title VII. See Nichols II, 828 F. Supp. 2d at 252. After a three-day hearing, an EEOC

administrative law judge found no discrimination. Id. Ms. Nichols brought suit in federal court,

alleging “myriad instances of harassment and abuse by [her] supervisors and coworkers,” and

pursuing relief against her employer based on numerous theories, including sex and race

discrimination, defamation, hostile work environment, gross mismanagement, retaliation, and

negligence. Nichols I, 424 F. Supp. 2d at 131. Her claims were based on: (1) the assignment of

“menial or inconsequential duties”; (2) denial of promotions; (3) denial of recognition for her

accomplishments; (4) abusive behavior by coworkers; (5) failure to address her complaints; (6)

general complaints about favorable treatment afforded to her coworkers, including several

African-American females; and (7) general criticisms of the “poor judgment and inadequate

work performance” of her coworkers and superiors. Id. at 130. She also sought injunctive relief

regarding ATF’s decision to relocate her department to West Virginia, which she claimed was

motivated by a desire to “isolate troublesome African-American employees in the FEIB, and

either to force them out of employment with the agency or to remove them to the . . . office in

West Virginia.” Id. at 143.

1
 Formerly referred to as the “Firearms, Explosives, and Arson Services Division” or “FEAS.” See Nichols I, 424 F.
Supp. 2d at 129 n.3.

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       Judge Friedman rejected all of Ms. Nichols’ claims. Most failed because she had not

exhausted administrative remedies as required under Title VII and the Federal Tort Claims Act.

Id. 134–35. The only properly exhausted discrimination claims were based on six allegations

stated in her 2000 EEOC complaint: (1) the denial of her request for detail assignments between

1996 and 1999; (2) the assignment of “tedious work” during that period; (3) the denial of the

opportunity to serve as acting Branch Chief during that period; (4) the denial of special

recognition and monetary awards for her work accomplishments during that period; (5) that

management permitted a coworker to “tamper with the office time log to give the appearance

that plaintiff was absent” on March 7, 2000; and (6) derogatory comments made by coworkers

between 1996 and 2002. Id. at 134. However, Judge Friedman concluded that none of these

exhausted claims could support a prima facie case of sex or race discrimination “either because

they [did] not constitute adverse employment actions or because . . . plaintiff . . . introduced no

evidence that would support an inference of discrimination.” Id. at 136. Judge Friedman also

concluded that Ms. Nichols failed to state a prima facie hostile workplace claim because she

failed to demonstrate a “any relation between the alleged harassment and plaintiff’s membership

in a protected class,” Id. at 140, and failed to state a prima facie retaliation claim because she

“failed to demonstrate a causal connection between the harassment in question and her protected

activity.” Id. at 141. As to her claims for injunctive relief regarding the relocation of FESD to

West Virginia, Judge Friedman held that Ms. Nichols “has produced neither evidence nor even

specific factual allegations (beyond the mere fact that [FESD] is being relocated) to support any

aspect of her theory” that the relocation was discriminatory, and noted that “defendant has

proferred legitimate nondiscriminatory reasons for its action: by relocating [FESD], it intends to




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centralize the ATF’s firearms processing functions in a single location . . . . and upgrade from the

division’s current, inadequate office space.” Id. at 143. Accordingly, the claim was rejected.

            2. Nichols II

        Ms. Nichols filed a second EEOC complaint in 2006, again alleging employment

discrimination in violation of Title VII. Nichols II, 828 F. Supp. 2d at 252. She raised new

allegations and restated previously adjudicated issues from 1996–1999. Id. Her complaint was

dismissed by an EEOC Administrative Law Judge, whose decision was affirmed on appeal by

DOJ and the Director of the EEOC Office of Federal Operations. Id. Ms. Nichols again filed

suit in federal court, naming both the Attorney General and the EEOC as defendants. Id. at 250–

51. Her 140-page complaint alleged race discrimination in violation of Title VII and that EEOC

had “mishandled” her two complaints. Id. at 251.

        This Court rejected her claims. Claims against EEOC failed because “no cause of action

against the EEOC exists for challenges to its processing of a claim.” Id. at 252 (quoting Smith v.

Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997)). The Court dismissed Ms. Nichols’ other claims

without prejudice, finding that her 140-page complaint violated Federal Rule of Civil Procedure

8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Id. at 253. The Court noted:

        In addition to [a] hazy conspiracy theory and potentially barred claims, Nichols
        clearly intends to assert a viable Title VII claim: that her former employer
        discriminated against her on the basis of race in reassigning her from Washington,
        DC to Martinsburg, WV . . . She may also intend to assert other viable claims.
        This Court stands ready to adjudicate them, but it cannot decipher Nichols’
        allegations in their present form.

Id. The Court also took care to caution Ms. Nichols about res judicata, warning that, if she chose

to file a revised complaint, she “may not reassert claims that were already adjudicated in her

earlier suit, even if she is dissatisfied with the outcome of that litigation.” Id. at 254.

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            3. The Revised Complaint

         Pursuant to the Court’s suggestion, and without objection from the defendant, Ms.

Nichols filed a revised complaint in December 2012, naming the Attorney General as the sole

defendant. Rev. Compl. Her 25-page revised complaint contains counts based on a variety of

legal theories: employment discrimination, “Disparaging Treatment,” harassment, hostile

workplace, retaliation, and “Reprisal.” See Rev. Compl. Ms. Nichols points to the following six

categories of facts in support of her claims: (1) assignment of menial or inconsequential work,

Rev. Compl. ¶¶ 12–15; (2) abusive behavior by coworkers and supervisors, id. ¶¶ 13, 23, 35–37,

39, 42–45; (3) promotions and career advancements given to other employees, including a

Hispanic male, id. ¶¶ 16–17, 23–25, 38, Black females, id. ¶ 22, and Caucasians, id. ¶¶ 18, 20,

41–44, but not her, id. ¶¶ 10–12, 17–18, 24–25, 38–41; (4) a “constructive discharge” that

resulted from her being forced to work in Martinsburg, West Virginia, instead of Washington

DC, id. ¶¶ 27–30, 31–34, 48–53, 56–59, 63; (5) that the EEOC mishandled her complaints, id. ¶¶

69–85; and (6) general allegations of mismanagement by her former employer, id. ¶ 19.

         The Attorney General has moved to dismiss or strike the revised complaint for (again)

failing to provide a “short and plain” statement pursuant to Rule 8, and in the alternative, based

on res judicata. Def.’s Mot., ECF No. 25.

   II.      ANALYSIS

         A. Res Judicata Bars Most of Ms. Nichols’ Claims

         The Court finds that many of the allegations presented in Ms. Nichols’ revised complaint

are barred by res judicata. “The preclusive effect of a judgment is defined by claim preclusion

and issue preclusion, which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553

U.S. 880, 892 (2008).     “Under the doctrine of claim preclusion, a final judgment forecloses



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‘successive litigation of the very same claim, whether or not relitigation of the claim raises the

same issues as the earlier suit.’” Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748

(2001)). Claim preclusion 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 (D.C. Cir. 2010). “Issue preclusion, in

contrast, bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a

valid court determination essential to the prior judgment,’ even if the issue recurs in the context

of a different claim.” Taylor, 553 U.S. at 892 (quoting New Hampshire v. Maine, 532 U.S. at

748–749). “By ‘precluding parties from contesting matters that they have had a full and fair

opportunity to litigate,’ these two doctrines protect against ‘the expense and vexation attending

multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by

minimizing the possibility of inconsistent decisions.’” Id. (quoting Montana v. United States,

440 U.S. 147, 153–154 (1979)).

         The revised complaint is sufficiently clear to allow the Court to find that some of the

claims stated therein fail under res judicata. 2 In 2006, Judge Friedman dismissed several of Ms.

Nichols’ claims for failure to state a prima facie case, or for failure to rebut the evidence of

nondiscriminatory purpose introduced by defendant. 3 Claims dismissed in this manner include

claims that were based on the assignment of “tedious work,” the denial of special recognition and

monetary awards for her work accomplishments, and derogatory comments made by coworkers.


2
 Particularly so given the fact that the Court issued a word of caution to plaintiff on the subject of avoiding
duplicative pleadings at the end of its last opinion. See Nichols II, 828 F. Supp. 2d at 254.
3
 Judge Friedman also dismissed some of Ms. Nichols’ claims in 2006 for failure to exhaust administrative remedies.
Nichols I, 424 F. Supp. 2d at 134-35. These dismissed claims will not have any claim preclusive effect here, as they
not constitute final, valid judgments on the merits. See Murthy v. Vilsack, 609 F.3d 460, 466 (D.C. Cir. 2010).

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Nichols I, 424 F. Supp. 2d at 134. Ms. Nichols’ revised complaint also states claims based on

the assignment of menial or inconsequential work, abusive behavior by coworkers and

supervisors, and promotions and career advancements given to other employees instead of her—

all apparently from the same time period. These claims appear to be identical to claims that were

rejected by Judge Friedman in 2006. Accordingly, these claims are barred by claim preclusion

and will be dismissed.

       Ms. Nichols’ claims regarding her “constructive discharge” arising from her

reassignment to West Virginia will not be claim precluded, but will be issue precluded. See Rev.

Compl. ¶¶ 27–30, 31–34, 48–53, 56–59, 63. In the previous case, Ms. Nichols had not yet

stopped working for ATF, and so she was seeking an injunction to either prevent ATF from

proceeding with the relocation of the department to West Virginia or to allow her to be

reassigned to another department. Judge Friedman rejected both requests. Nichols I, 424 F.

Supp. 2d at 143. Her claim in the present matter is not identical to the 2006 claim—she does not

seek to enjoin ATF, but rather seeks damages based on her “constructive discharge” that resulted

from this allegedly discriminatory relocation—and thus is not amenable to claim preclusion.

Porter, 606 F.3d at 813. In addressing the related claim in 2006, the Court found that Ms.

Nichols failed to demonstrate discriminatory purpose behind the ATF’s relocation of this

department, and failed to rebut defendants’ proffer of a nondiscriminatory reason. Nichols I, 424

F. Supp. 2d at 143 (finding that Ms. Nichols “produced neither evidence nor even specific factual

allegations (beyond the mere fact that [FESD] is being relocated) to support any aspect of her

theory” that the relocation of the office was discriminatory, and noted that “defendant has

proferred legitimate nondiscriminatory reasons for its action: by relocating [FESD], it intends to

centralize the ATF’s firearms processing functions in a single location . . . . and upgrade from the



                                                 7
division’s current, inadequate office space.”). Although her claim in the present action is not

identical to the previous one, Judge Friedman’s finding regarding the issue of discriminatory

purpose behind this relocation constitutes an “issue of fact or law actually litigated and resolved

in a valid court determination essential to the prior judgment” which Ms. Nichols is precluded

from pursuing again here. See Taylor, 553 U.S. at 892. Because Ms. Nichols related claims in

the present action can only succeed if she demonstrates the discriminatory purpose behind the

relocation, and because she is precluded from pursuing that issue again, her claim will be

dismissed.

          B. Ms. Nichols’ Remaining Unbarred Claims Also Fail

          Ms. Nichols’ claims based on the alleged mishandling of her complaints by EEOC, see

Rev. Compl. ¶¶ 69–85, were rejected by this Court in Nichols II, since there is no such cause of

action against the EEOC. 828 F. Supp. 2d at 252. These claims are dismissed here for the same

reason.

          Finally, Ms. Nichols’ complaints about mismanagement by her employer fail to state a

cognizable claim under Title VII. As Judge Friedman noted in 2006:

          It is clear from all of plaintiff’s filings in this case that she believes her workplace
          to be poorly managed and captive to persons of domineering and unpleasant
          personalities, and that she believes herself to be the object of persistent and
          undeserved harassment.            Title VII, however, was enacted to redress
          discrimination . . . in employment, rather than to ensure that the American
          workplace would remain free from poor management or harassment of all kinds,
          no matter how motivated. . . . Plaintiff’s claims simply do not fall within the
          scope of Title VII . . . .

Nichols I, 424 F. Supp. 2d at 143–44. These claims fail for the same reason now, and will be

dismissed.




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   III.      CONCLUSION

          Ms. Nichols has enjoyed numerous opportunities to present her claims in federal court.

In her first action, she filed a complaint, an amended complaint, and a second amended

complaint. See Docket, Nichols v. Truscott, 03-cv-1831. In this action, she filed a complaint and

the revised complaint at issue here. See Docket, Nichols v. Holder, 11-910. Finding that “the

allegation of other facts consistent with the [Ms. Nichols’ claims] could not possibly cure the

deficiency,” this Court will now dismiss Ms. Nichols’ revised complaint WITH PREJUDICE.

See Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996) (per curiam).

          An Order shall issue with this opinion.

          Signed by Royce C. Lamberth, Chief Judge, on April 11, 2013.




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