                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES CO URT O F APPEALS
                                                                             September 18, 2006
                                FO R TH E TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                                 Clerk of Court

 NEAL K. OSTLER,

            Plaintiff-Appellant,

   v.                                                          No. 06-4016
                                                        (D.C. No. 2:04-CV -627-TS)
 ROCKY ANDERSON, M ayor, in his                                 (D. Utah)
 individual and official capacity; RICK
 GRAHAM , city employee, in his
 individual and official capacity; KEVIN
 BERGSTROM , city employee, in his
 individual and official capacity;
 DEBBIE LYONS, city employee, in her
 individual and official capacity;
 W ENDEE PA CKW OOD, city employee,
 in her individual and official capacity;
 SALT LAK E COM M UN ITY
 C OLLEG E; U TA H D EPA RTM ENT OF
 PUBLIC SAFETY; UTA H A TTORNEY
 G EN ERAL; U TA H LA BO R
 C OM M ISSIO N ; SA LT LA K E C ITY;
 SA LT LA K E C ITY CO RPO RA TION,

            Defendants-Appellees.



                               OR D ER AND JUDGM ENT *




*      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G)10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.
The court generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BROR BY and EBEL, Circuit Judges, and KANE, ** District Judge.




       Plaintiff-Appellant Neal K. Ostler, appearing pro se, challenges the district

court’s dismissal of his retaliation claim brought pursuant to Title VII of the Civil

Rights Act of 1964 and the Age D iscrimination in Employment Act. Ostler also

appeals the dismissal of his pendent state claims for breach-of-contract and

blacklisting. The district court dismissed Ostler’s retaliation claim pursuant to Fed.

R. Civ. P. 12(b)(6) for failure to state a claim, the breach-of-contract claim as

barred by the doctrine of res judicata, and the blacklisting claim because there is no

private cause of action for blacklisting under Utah law. W e have jurisdiction under

28 U.S.C. § 1291 and affirm.



                                  I. BACKGROUND

       This appeal represents the most recent case in a series of civil rights and

employment discrimination suits initiated by Ostler since the early 1990’s. At that

time, Ostler had been employed by the state of Utah for over 18 years when he was

terminated from his job and thereby denied eligibility to partake in the state’s Public

Safety Retirement Program. Ostler settled his first suit against the state and


  **
        The Honorable John L. Kane, Senior District Judge, United States District
  Court for the District of Colorado, sitting by designation.


                                          -2-
thereafter endeavored to regain public employment in Utah. Eventually, he was

hired by Salt Lake City Corporation (SLCC) only to be terminated three months

later. Shortly thereafter, Ostler filed this suit against various agencies and officials

of Salt Lake City and the state of Utah, claiming his termination from SLCC was

retaliatory in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e - 2000e-17, and the Age Discrimination in Employment Act, 42 U.S.C. §§

6101 - 6107 (ADEA). Ostler also pleaded a number of state law claims, including

breach-of-contract and blacklisting.

      On September 14, 2005, the district court granted Defendants SLCC, Rick

Graham, Kevin Bergstrom, Debbie Lyons, and W endee Packwood’s motion to

dismiss the retaliation claim pursuant to Fed. R. Civ. P. 12(b)(6). The district court

also granted a motion to dismiss the breach-of-contract and blacklisting claims filed

by the Utah Attorney General and the Utah Labor Commission. 1 The court

determined the contract claim was barred by the doctrine of res judicata and that

Utah law provided no private cause of action for blacklisting. Ostler now

challenges the district court’s dismissal of these three claims.




  1
        The remaining defendants, Salt Lake City M ayor Rocky Anderson, Salt
  Lake Community College, and the U tah D epartment of Public Safety, were
  subsequently dismissed because they were never served. See Ostler v. Salt Lake
  City Corp., et al., Case No. 2:04-CV-627, Docket No. 77 (Oct. 24, 2005).

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                                   II. DISCUSSION

      A. Retaliation

      On appeal, Ostler maintains that he established a prima facie case of

retaliation because he was actively opposing age discrimination when he was

terminated by SLCC. He argues that his opposition to discrimination is

“self-evident,” and that SLCC’s motive to retaliate is evidenced by his termination

without “good cause” or “any reason at all.” A plt.’s Br. at 2-3. The district court

disagreed, however, finding that Ostler failed to assert any facts as to how he

participated in any opposition to discrimination protected by the Civil Rights A ct,

or how any such opposition related to his termination. Supp. App. at 109-10.

Hence, the court dismissed the claim.

      W e review de novo a district court’s dismissal of a complaint for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). Jacobs, Visconsi & Jacobs, Co. v. City

of Lawrence, Kansas, 927 F.2d 1111, 1115 (10th Cir. 1991). Such a dismissal will

be upheld “only when it appears that the plaintiff can prove no set of facts in

support of the claims that would entitle the plaintiff to relief.” Id.

      To establish a prima facie case of retaliation, a plaintiff must demonstrate

that: (1) he was engaged in opposition to Title VII discrimination; (2) he was the

subject of adverse employment action; and (3) a causal connection exists between

the protected activity and the adverse employment action. Jones v. Barnhart,

349 F.3d 1260, 1269 (10th Cir. 2003).

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      Here, although O stler was appealing a previous Title VII action against

numerous agencies and officials at the time he was terminated from SLCC, see

Ostler v. Utah, 105 F. App’x 232 (10th Cir. 2004), cert. denied, 543 U.S. 1065

(2005), Ostler nonetheless fails to plead a prima facie case of retaliation because he

cannot establish a causal connection betw een his prior case and his termination.

SLCC was not a defendant in the previous Title VII action and Ostler has not

alleged that SLCC knew of the lawsuit. Indeed, the record contains no indication

that SLCC had any knowledge of the previous claim whatsoever. To establish a

causal connection, plaintiff must show that the individual who took adverse action

against him knew of the employee’s protected activity. Williams v. Rice, 983 F.2d

177, 181 (10th Cir. 1993). Although a pro se litigant’s pleadings are to be

construed liberally, “conclusory allegations w ithout supporting factual averments

are insufficient to state a claim on which relief can be based.” H all v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991) (citations omitted). Given that Ostler’s complaint

fails to aver any facts indicating SLCC’s knowledge of his previous Title VII case,

he cannot satisfy the third element of a retaliation claim. Consequently, we

conclude that the district court correctly dismissed Ostler’s claim of retaliation.

      B. Breach of Contract

      W e next address Ostler’s breach-of-contract claim against the Utah Attorney

General and Labor Commission. Ostler contends the district court erred in finding

this claim barred by the doctrine of res judicata because there was no judgment on

                                           -5-
the merits of his prior lawsuit where it was ultimately dismissed on procedural

grounds. 2 Notwithstanding this contention, the district court held there was a prior

judgment on the merits involving identical parties and identical claims. Supp. App.

at 112. Consequently, the court concluded that res judicata applied. Id. W here the

facts are undisputed, we determine de novo whether the district court correctly

applied the substantive law of res judicata. Nwosun v. Gen. M ills Restaurants, Inc.,

124 F.3d 1255, 1257 (10th Cir. 1997).

      Res judicata applies when: (1) the prior action has been finally adjudicated

on the merits; (2) the parties are identical or in privity; (3) the suit is based on the

same cause of action; and (4) the plaintiff had a full and fair opportunity to litigate

the claim in the prior action. Id. In this case, all four elements are satisfied.

      The first element of res judicata is established because the district court’s

dismissal with prejudice of Ostler’s previous contract claim constitutes a final

adjudication on the merits with preclusive effect in federal court. Clark v. Haas

Group, Inc., 953 F.2d 1235, 1238 (10th Cir. 1992). The second element is likew ise

satisfied because Ostler’s previous suit named numerous agencies of the state of

Utah, and this suit asserts the same claim against the Utah Attorney General and




  2
        The district court dismissed the claim because Ostler failed to properly
  serve certain defendants. Although the court had directed him to accomplish
  service, Ostler declined to do so and instead requested leave to serve abbreviated
  copies of an amended complaint, or alternatively, a second amended complaint.
  See Ostler v. Utah, Case No. 2:01-CV-291, Docket N o. 111 (N ov. 12, 2003).

                                            -6-
Department of Labor, also entities of the state of Utah. See U nited States v. Rogers,

960 F.2d 1501, 1509 (10th Cir. 1992) (“There is privity between officers of the

same government so that a judgment in a suit between a party and a representative

of the [government] is res judicata in relitigation of the same issue between that

party and another officer of the government.”). Third, in both this and the prior

suit, Ostler alleged the same contract was breached in the same manner —

conspiratorial interference with his career plans and professional endeavors. This

establishes the third element of res judicata because, as Ostler’s complaint

concedes, the basis for this claim is “the same basis” as that in his previous suit.

Supp. App. at 16. Fourth, Ostler need not have litigated the issue in the prior

action, but rather only have had an opportunity to litigate. See Nwosun, 124 F.3d at

1257-58 (discussing how a full and fair opportunity to litigate relates to the

fundamental fairness of the original proceeding); see also Yapp v. Excel Corp, 186

F.3d 1222, 1227 n.4 (10th Cir. 1999) (discussing how in most circumstances, the

first three requirements are “all that are necessary for a principled application of the

doctrine”). Indeed, in situations such as this, where the district court gave Ostler

ample opportunity to litigate his claim but he nonetheless declined to cure

procedural defects, we cannot say he did not have a full and fair opportunity to

litigate. Thus, having satisfied all four requirements, we find the district court

properly dismissed Ostler’s claim as barred by the doctrine of res judicata.

      C. Blacklisting

                                           -7-
      Lastly, we turn to Ostler’s claim for blacklisting. Ostler contends he has been

effectively blacklisted by Defendants and he therefore seeks to enforce Utah’s anti-

blacklisting statute, Utah Code Ann. § 34-24-1 (2004). The district court dismissed

this claim, concluding that § 34-24-1 provides no private cause of action. Supp.

App. at 107.

      Utah Code Ann. § 34-24-1 (2004) provides:

      No person shall blacklist or publish, or cause to be published or
      blacklisted, any employee discharged or voluntarily leaving the service
      of any person, company or corporation with intent and for the purpose
      of preventing such employee from engaging in or securing similar or
      other employment from any other person, company or corporation.

In Richards Irrigation Co. v. Karren, 880 P.2d 6, 10-11 (Utah Ct. App. 1994), the

Utah Court of Appeals disposed of this precise argument, holding that there is no

private cause of action for blacklisting under Utah law. W e therefore conclude the

district court was correct to dismiss the claim.



                                  III. CONCLUSION

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court


                                                   David M . Ebel
                                                   Circuit Judge




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