                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     September 11, 2007

                                                                              Charles R. Fulbruge III
                                                                                      Clerk

                                     No. 06-50268
                                   Summary Calendar


MICHAEL W STEEN

                                                  Plaintiff - Appellant
v.

FRANCIS J HARVEY, Secretary of the Army, Department of the Army

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                     for the Western District of Texas, Waco
                                No. 6:04-CV-378


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Michael W. Steen appeals the district court’s dismissal
of his Title VII claim as barred by res judicata. For the following reasons, we
AFFIRM.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Michael W. Steen worked for the Department of the Army as a Wage
Grade 11 Electronics Mechanic in the Electronic and Communications Section,


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-50268

Maintenance Division of the Directorate of Logistics at Fort Hood, Texas. Steen
was terminated on August 21, 2001. The reason given for his termination was
that he had engaged in a pattern of disruptive behavior in the workplace. He
appealed his termination to the Merit Systems Protection Board (“MSPB”),
alleging that he was terminated on the bases of race, age, veteran status, and
disability. The MSPB Administrative Judge (“AJ”) upheld Steen’s termination.
The full MSPB denied Steen’s petition for review, accepted the AJ’s decision, and
issued a final order to that effect. On November 3, 2003, Steen petitioned the
Equal Employment Opportunity Commission (“EEOC”) to review the MSPB’s
final order with respect to his discrimination claims. On December 4, 2003, the
EEOC concurred with the MSPB’s final decision finding no discrimination.
      On January 8, 2004, Steen filed suit against the Secretary of the Army in
federal district court (“Steen I”) alleging that he was terminated because of his
race, age, and disability in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e–2000e-17; the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. § 621; and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. § 791. As evidence of discrimination on the
basis of race, Steen alleged that his “first line supervisor asked [him] about his
interracial marriage and the KKK in the workplace.” To support his disability
claim, Steen asserted that he had “hemorrhoids, knee instability, and high blood
pressure and other physical and mental disabilities.” The district court granted
summary judgment for the Secretary on August 3, 2004, and we affirmed.
      Subsequently, Steen filed this suit against the Secretary on November 22,
2004 (“Steen II”) alleging hostile work environment.             He asserts that
discrimination on the bases of race, age, disability, and retaliation for his past
EEOC complaints in violation of Title VII and the Rehabilitation Act of 1973
resulted in a hostile work environment. In support of his claims, Steen alleges
the very same facts that he alleged in Steen I.          As evidence of his race

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discrimination allegations, he complains, “On May 2, 2000, Steen’s supervisor
questioned Steen about being married to a white woman and about how Steen
felt about the Ku Klux Klan.” In support of his disability discrimination claim,
Steen asserts “physical disabilities relating to his knees, feet, high blood
pressure, blisters, and hemorrhoids, and mental disabilities relating to sleep
depravation [sic] and nerves.” The conditions and events complained of in this
suit all predate the filing of Steen I.
      On December 19, 2005, the district court granted the Secretary’s motion
to dismiss on the grounds that Steen’s claims were barred by res judicata. Steen
filed a timely notice of appeal.
                         II. STANDARD OF REVIEW
      The res judicata effect of a prior judgment is a question of law that we
review de novo. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir.
2004).
                                III. DISCUSSION
      In Davis, we held that “a plaintiff who brings a Title VII action and files
administrative claims with the EEOC must still comply with general rules
governing federal litigation respecting other potentially viable claims,” including
res judicata. Id. at 316 (internal quotation marks omitted) (internal citation
omitted). There, the plaintiffs’ race discrimination and retaliation claims were
barred by res judicata because they failed to raise the claims in a prior
discrimination suit even though all the conduct complained of predated the filing
of the first suit. Id. This was so notwithstanding the fact that the Davis
plaintiffs had not yet received right-to-sue letters from the EEOC. Id. This
court reasoned that they could have prevented their claims from being precluded
by requesting a stay in the prior case until their letters arrived. Id.
      Here, Steen concedes that he should have requested a stay in Steen I until
he received his right-to-sue letter. However, he argues that because Davis was

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decided on August 27, 2004, twenty-four days after the district court granted
summary judgment for the Secretary in Steen I, the rule of law established in
Davis is inapplicable to his case, and res judicata should not apply to him.
      Even if we accept, arguendo, Steen’s argument that Davis announced a
new rule of law, the retroactive application of a new rule of law is governed by
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1992). In Beam, the
Supreme Court held, “Once retroactive application is chosen for any assertedly
new rule, it is chosen for all others who might seek its prospective application.”
Id. at 543. In Sterling v. Block, we applied Beam to determine that a rule
requiring a judgment creditor “to provide notice to interested parties whose
identity is reasonably ascertainable or . . . actually known” prior to a foreclosure
sale should apply retroactively to a sale that took place four months before the
rule was announced because the rule was applied retroactively to the parties in
the case that established it. 953 F.2d 198, 200 (5th Cir. 1992).
      In Davis, we applied the rule to the plaintiffs’ case because they could have
prevented their claims from being precluded by requesting a stay in their first
case until they received their letters. 383 F.3d at 316. Consequently, under
Sterling, 953 F.2d at 200, the rule established by this court in Davis does apply
to Steen, and Steen’s claims are barred.
      “The doctrine of res judicata, or claim preclusion, forecloses relitigation of
claims that were or could have been raised in a prior action.” Davis, 383 F.3d at
312-13 (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). For res judicata to
operate as a bar to a claim, four elements must be met: (1) the parties in both
the prior suit and current suit must be identical; (2) a court of competent
jurisdiction must have rendered the prior judgment; (3) the prior judgment must
have been final and on the merits; and (4) the plaintiff must raise the same
cause of action in both suits. Id.



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      In this case, the first three elements are undisputed. Only the fourth
element, whether this case and Steen I involve the same cause of action, is at
issue in this appeal.
      To determine whether consecutive cases involve the same cause of action,
we apply the transactional test. Id. at 313 (citing Nilsen v. City of Moss Point,
701 F.2d 556, 560 (5th Cir. 1983)). Under the transactional test, the claim
preclusive effect of a prior judgment encompasses all rights of the plaintiff “with
respect to all or any part of the transaction, or series of connected transactions,
out of which the [original] action arose.” Id. (citing Petro-Hunt, L.L.C. v. United
States, 365 F.3d 385, 395-96 (5th Cir. 2004)). Whether a factual unit “constitutes
a ‘transaction’ . . . or a ‘series of transactions’, [is] to be determined
pragmatically, giving weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage.” Id. (citing Petro-Hunt, L.L.C.,
365 F.3d at 396). The critical issue is whether the consecutive actions “are based
on the same nucleus of operative facts.” Id. (citing Petro-Hunt, L.L.C., 365 F.3d
at 396).
      In Davis, we determined that the plaintiffs’ consecutive claims constituted
a series of connected transactions and were the same claim because they all
originated from the “same continuing course of allegedly discriminatory
conduct,” even though the two cases included conduct that occurred over
different time periods. 383 F.3d at 314.
      Here, the nexus is even tighter because not only are the claims “based on
the same nucleus of operative facts,” they actually are based on identical facts
occurring during the same time period, April to May 2000. Id. Even though
Steen complains of wrongful termination in Steen I and a hostile work
environment in this case, he cites the same incident in both suits to support his

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race discrimination claims, a May 2, 2000, encounter when his supervisor
allegedly asked about Steen’s interracial marriage and thoughts on the Ku Klux
Klan. Likewise, to support the allegation that he was discriminated against on
the basis of his disability, he asserts the same facts, including hemorrhoids,
instability in his lower extremities, high blood pressure, and mental disabilities.
      Thus, like in Davis, because the claims in this case are part of the same
transaction as the claims in Steen I, Steen’s claims are barred by res judicata.
Notwithstanding the fact that he had not received his right-to-sue letter, because
all the conduct complained of occurred prior to the filing of Steen I, Steen should
have requested a stay until he received his right-to-sue letter, or simply
amended his complaint in Steen I and included the claims pursuant to 42 U.S.C.
§ 2000e-16(c). Munoz v. Aldridge, 894 F.2d 1489, 1492-93 (5th Cir. 1990)
(holding that 42 U.S.C. § 2000e-16(c) allows a claimant to appeal to the district
court if the agency had not taken final action on the claim within 180 days of the
claim being filed with the agency as long as the claimant cooperated in good
faith in the agency proceedings).
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s order.




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