                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA

                                         )
SHEILA ALFORD,                           )
                                         )
             Plaintiff,                  )
                                         )
             v.                          )       Civil Action No. 13-cv-1817 (KBJ)
                                         )
PROVIDENCE HOSPITAL,                     )
                                         )
             Defendant.                  )
                                         )

                             MEMORANDUM OPINION

      This is the second action that Plaintiff Sheila Alford (“Plaintiff” or “Alford”), a

paraplegic who requires the use of a wheelchair, has filed against her former employer,

Defendant Providence Hospital (“Defendant” or “Providence”), challenging the

termination of her employment as an office worker at Providence Hospital. Alford filed

the instant complaint on November 20, 2013, alleging that her termination on January 7,

2011, and also Defendant’s alleged refusal to provide a reasonable accommodation for

her disability, violated her rights under the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. §§ 12112-12117 (2014). (Amended Compl. (“Compl.”), ECF No.

3, ¶¶ 37-51.) In the prior action, which was filed in this district in November of 2011,

Alford argued that this same termination violated her rights under the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2612(a) (2014), and its local counterpart,

the District of Columbia Family and Medical Leave Act (“DCFMLA”), D.C. Code § 32-

507 (2014), but the court concluded that Providence had terminated Alford for a

legitimate reason and therefore granted summary judgment in Defendant’s favor. See

Alford v. Providence Hosp. (“Alford I”), 945 F. Supp. 2d 98, 108 (D.D.C. 2013), aff’d,


                                             1
No. 13-7096, 2014 WL 3013741 (D.C. Cir. June 20, 2014).

         Presently before this Court is Defendant’s motion to dismiss for failure to state a

claim upon which relief can be granted, in which Providence argues that res judicata

bars consideration of Alford’s complaint. (See Def.’s Mot. To Dismiss (“Def.’s Mot.”),

ECF No. 8.) This Court concludes that, because Alford could have brought the instant

ADA claims in her prior lawsuit, the doctrine of res judicata precludes her from

bringing them now. Accordingly, this Court will GRANT Defendant’s motion to

dismiss. A separate order consistent with this opinion will follow.


    I.   BACKGROUND

            A. Facts

         This is the second case that Alford has filed against Providence alleging that her

termination and related events constituted employment discrimination. See Alford I,

945 F. Supp. 2d at 98-111. 1 Most of the relevant facts have already been detailed at

length in Alford I, see id. at 101-03, so this Court will not reiterate them here in their

entirety. For the purposes of the instant decision, however, a brief summary follows.

         Alford worked as a secretary at Providence Hospital from July of 1983 until her

termination on January 7, 2011. (Compl. ¶¶ 2, 25.) Since 1991, she has been a

paraplegic and, as a result, has needed to use a wheelchair. (Id. ¶ 2.) From August of

2009 through March of 2010, Alford took unpaid leave to recover from an injury to her

hand that she suffered at work. Alford I, 945 F. Supp. 2d at 101; see also Amended


1
  While this is Alford’s second action against Providence arising out of her termination, it is actually
her third lawsuit against this defendant: in 2007, while Alford was still a Providence employee, she
filed suit alleging that Defendant had violated her rights under the ADA when it did not select her for a
position to which she had applied. See Alford v. Providence Hosp., 791 F. Supp. 2d 168, 169 (D.D.C.
2011). The court granted summary judgment for Defendant in this non-selection action on June 14,
2011. Id. at 175.


                                                    2
Compl. (“Alford I Compl.”), Alford I, No. 11-02121 (D.D.C. Oct. 25, 2012), ECF No.

20. On April 2, 2010, just days after her return to the office, Alford injured her

shoulder, head, and neck at work. Alford I, 945 F. Supp. 2d at 101. She took additional

leave to recover from this second injury before returning to work once again on May 7,

2010. Id. at 101-02 & n.1.

       Months later, on December 3, 2010, Alford went to the emergency room after

reporting shoulder pain in the same shoulder that she had injured in April. See id. at

102. On December 7, Alford saw her doctor and requested further leave until December

14 even though that doctor had approved her to return to work on the condition that she

not lift anything over ten pounds. Id. Between December 15, 2010, and January 7,

2011, Alford visited that same doctor and several others who all approved her to return

to work subject to similar weight-lifting restrictions. Id. at 102-03. Notably, these

weight-lifting restrictions prohibited Alford from lifting her 48-pound wheelchair. Id.

at 102. Providence determined that Alford could not load her wheelchair into and out

of her car, which made it difficult for her to get to work. Id. at 103. Because there was

an “operational need” to fill her position, Providence terminated Alford effective

January 7, 2011. Id. Alford alleges that she repeatedly contacted Providence to try to

return to work in late December of 2010 and throughout January of 2011, but that

Providence did not answer her inquiries until it notified her of her termination on

January 25, 2011. (Compl. ¶¶ 19, 20, 24-26, 29.)


          B. Procedural History

       Following her termination, Alford filed two different complaints. On June 19,

2011, Alford filed an administrative complaint with the Equal Employment Opportunity



                                            3
Commission (“EEOC”), alleging that her termination and associated events constituted

disability discrimination in violation of the ADA. (Pl.’s Mem. in Opp’n to Def.’s Mot.

to Dismiss (“Pl.’s Opp’n”), ECF No. 9, at 2; EEOC Charge of Discrimination (“Charge

of Discrimination”), Ex. A to Def.’s Mot., ECF No. 8-2, at 1.) 2 Months later, on

November 8, 2011, Plaintiff filed the Alford I complaint, contending that the very same

termination and related events violated her rights under the FMLA and the DCFMLA

and gave rise to tort liability under D.C. law. (See Pl.’s Opp’n. at 2.) See also Alford I,

945 F. Supp. 2d at 103. 3

          On March 29, 2013, while Alford I was still pending in the district court, the

EEOC issued a Letter of Determination in Plaintiff’s administrative ADA case, finding

reasonable cause to believe that Providence had discriminated against her on the basis

of her disability when it failed to provide her with a reasonable accommodation and

instead terminated her. (Compl. ¶¶ 31-33; EEOC Letter of Determination (“Letter of

Determination”), Ex. 2 to Pl.’s Opp’n, ECF No. 10-4.) On April 18, 2013, the EEOC

began an attempt to resolve the dispute through out-of-court conciliation between

Alford and Providence. (Compl. ¶ 35; see also EEOC Proposed Conciliation Letter

(“EEOC Conciliation Letter”), Ex. 3 to Pl.’s Opp’n, ECF No. 10-3.) 4 Meanwhile, on


2
    Page numbers throughout refer to those automatically assigned by the Court’s electronic filing system.
3
  Specifically, in Alford I Plaintiff brought five counts alleging that Providence: (1) interfered with her
FMLA rights in violation of 29 U.S.C. § 2612(a)(1); (2) interfered with her DCFMLA rights in
violation of D.C. Code § 32-507(a); (3) unlawfully retaliated against her in violation of her rights under
both the FMLA, 29 U.S.C. § 2615(a)(2), and the DCFMLA, D.C. Code § 32-507(b)(1); (4) committed
tortious intentional misrepresentation in violation of D.C. law; and (5) committed negligent
misrepresentation in violation of D.C. law. Alford I, 945 F. Supp. 2d at 104-05, 108-10. Plaintiff
initially filed Alford I in D.C. Superior Court, but Providence removed the case to D.C. District Court.
See Notice of Removal, Alford I, No. 11-2121, (Nov. 29, 2011), ECF No. 1.
4
 Conciliation is an informal procedure in which an EEOC investigator works with the claimant and the
employer to fashion an appropriate remedy. See Resolving a Charge, U.S. Equal Employment
Opportunity Comm’n, available at www.eeoc.gov/employers/resolving.cfm (last visited July 25, 2014).


                                                     4
May 23, 2013, the Alford I court granted summary judgment in favor of Defendant. See

Alford I, 945 F. Supp. 2d at 111.

          Alford alleges that, on August 20, 2013—several months after resolution of the

FMLA and DCFMLA claims in Alford I—the EEOC finally determined that its efforts

to conciliate Plaintiff’s ADA complaint were unsuccessful and issued a right-to-sue

notice. (Compl. ¶ 36.) 5 Alford then filed the instant ADA complaint in federal court in

November of 2013. 6 Defendant moved to dismiss on February 10, 2014. (See Def.’s

Mot. at 1.) The motion is now fully briefed and ripe for consideration.


    II.   LEGAL STANDARD

             A. Standard For A 12(b)(6) Motion To Dismiss

          A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests

the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.

2002). “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The plausibility

standard is satisfied “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citation omitted). “In deciding whether to dismiss a complaint for failure to state a

claim, the court must treat the complaint’s factual allegations—including mixed


5
  There is a discrepancy in Alford’s description of the timing of the end-of-conciliation letter: in the
complaint, Alford alleges that the EEOC issued this letter on August 20, 2013, but in her opposition,
Alford states that the EEOC issued a letter advising her that conciliation had failed on May 14, 2013.
(Compare Compl. ¶ 35-36 with Pl.’s Opp’n. at 4.) This Court will accept as true the timing allegation
in the complaint but notes that the different date would not change the outcome.
6
 Plaintiff initiated this action on November 19, 2013, but filed the instant complaint (which is the first
amended complaint) the very next day. (See Compl. at 1.)


                                                    5
questions of law and fact—as true and draw all reasonable inferences therefrom in the

plaintiff’s favor.” Epps v. U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 13 (D.D.C. 2010)

(citing Holy Land Found. For Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003), and Browning, 292 F.3d at 242).

       When res judicata bars a claim, it is subject to dismissal under Rule 12(b)(6).

See RSM Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 800 F. Supp. 2d

182, 189 (D.D.C. 2011) (“Res judicata is an affirmative defense that is usually pled in a

defendant’s answer, but courts have also allowed parties to assert the defense in a

12(b)(6) motion to dismiss.” (citation omitted)). A defendant may raise the res judicata

defense in a 12(b)(6) motion “where [it] can be established from the face of the

complaint, matters fairly incorporated within it, and matters susceptible to judicial

notice.” Lewis v. DEA, 777 F. Supp. 2d 151, 159 (D.D.C. 2011) (internal quotations

and citations omitted). When ruling on a motion to dismiss under Rule 12(b)(6) on res

judicata grounds, a court may take judicial notice of its own record, public records from

other proceedings, and documents attached as exhibits or incorporated by reference in

the complaint, including administrative complaints and orders. See Laughlin v. Holder,

923 F. Supp. 2d 204, 209 (D.D.C. 2013) (taking judicial notice of documents attached

to or incorporated into the complaint, including administrative complaints and

documents); Hemphill v. Kimberly-Clark Corp., 605 F. Supp. 2d 183, 186 (D.D.C.

2009) (taking judicial notice of public records from other proceedings (citation

omitted)); Sieverding v. U.S. Dep’t of Justice, 847 F. Supp. 2d 75, 81 (D.D.C. 2012)

(taking judicial notice of a court’s own records (citation omitted)).

       Here, Alford did not attach any documents to her complaint, but both parties




                                             6
attached documents to their briefing on the instant motion to dismiss. Providence

included Alford’s administrative charge of discrimination alleging an ADA violation

(see Charge of Discrimination, Ex. A to Def.’s Mem., ECF No. 8-2), which this Court

may consider as the plaintiff’s administrative complaint, see Laughlin, 923 F. Supp. 2d

at 209. Alford attached various documents generated during the EEOC’s administrative

review of her claims, which this Court may consider because Plaintiff specifically

referenced them in the complaint. See id. (See, e.g., Compl. ¶¶ 31-33 (letter of

determination); id. ¶ 35 (letter of proposed conciliation); id. ¶ 36 (right to sue letter).)

Finally, this Court may consider the facts and public records of Plaintiff’s earlier case,

Alford I. See Hemphill, 605 F. Supp. 2d at 186.


          B. The Doctrine of Res Judicata

       Res judicata “bars relitigation of claims or issues that were or could have been

litigated in a prior action.” Alaska Forest Ass’n v. Vilsack, 883 F. Supp. 2d 136, 141

(D.D.C. 2012) (citing Taylor v. Sturgell, 553 U.S. 889, 892 (2008)); see also Brown v.

Mabus, 892 F. Supp. 2d 115, 118 (D.D.C. 2012) (noting that res judicata prevents

parties from “relitigating in a separate proceeding any ground for relief which they

already have had an opportunity to litigate[,] even if they chose not to exploit that

opportunity, and regardless of the soundness of the earlier judgment.” (alteration in

original) (internal quotation marks and citations omitted)). The doctrine thus bars

“parties from contesting matters that they have had a full and fair opportunity to litigate

[and] protects their adversaries from the exposure and vexation attending multiple

lawsuits, conserves judicial resources, and fosters reliance on judicial action by

minimizing the possibility of inconsistent decisions.” Apotex, Inc. v. FDA, 393 F.3d



                                              7
210, 217 (D.C. Circ. 2004) (quoting Montana v. United States, 440 U.S. 147, 153-54

(1979)). However, res judicata “does not preclude claims based on facts not yet in

existence at the time of the original action . . . [and] does not bar a litigant from doing

in the present what he had no opportunity to do in the past.” Drake v. FAA, 291 F.3d

59, 66-67 (D.C. Cir. 2002) (internal quotations and citations omitted). Put another way,

res judicata “does not prevent parties from later bringing claims that would have been

utterly impracticable to join in an earlier suit or those that could not have been

anticipated when the first suit was filed.” Velikonja v. Ashcroft, 355 F. Supp. 2d 197,

201 (D.D.C. 2005) (internal quotation marks and citations omitted).

       “Res judicata has two distinct aspects—claim preclusion and issue preclusion

(commonly known as collateral estoppel)—that apply in different circumstances and

with different consequences to the litigants.” Nader v. Democratic Nat’l Comm., 590 F.

Supp. 2d 164, 168 (D.D.C. 2008) (citing NextWave Pers. Commc’ns, Inc. v. FCC, 254

F.3d 130, 142 (D.C. Cir. 2001), and Novak v. World Bank, 703 F.2d 1305, 1309 (D.C.

Cir. 1983)). “[C]laim preclusion forecloses all that which might have been litigated

previously, while issue preclusion prevents the relitigation of any issue that was raised

and decided in a prior action.” Golden v. Ficken, 696 F. Supp. 2d 21, 32 (D.D.C. 2010)

(internal quotation marks and citations omitted). Claim preclusion, which “embodies

the principle that a party who once has had a chance to litigate a claim before an

appropriate tribunal usually ought not to have another chance to do so[,]” SBC

Commc’ns Inc. v. FCC, 407 F.3d 1223, 1230 (D.C. Cir. 2005) (internal quotation marks

and citation omitted), is at issue here. In the D.C. Circuit, claim preclusion bars a

subsequent lawsuit if there has been prior litigation “(1) involving the same claims or




                                              8
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.” Vilsack,

883 F. Supp. 2d at 141-42 (internal quotation marks omitted) (quoting NRDC v. EPA,

513 F.3d 257, 260 (D.C. Cir. 2008)).

       With respect to whether two lawsuits involve the same “claims or cause of

action,” see id. at 141, “it is the facts surrounding the transaction or occurrence which

operate to constitute the cause of action, not the legal theory upon which a litigant

relies.” Crabbe v. Nat’l Self Serv. Storage, 955 F. Supp. 2d 1, 4 (D.D.C. 2013)

(emphasis added) (internal quotation marks omitted) (quoting Page v. United States,

729 F.2d 818, 820 (D.C. Cir. 1984)). Thus, claim preclusion bars subsequent

complaints arising from the same set of facts, even if the complaints bring claims under

different statutes, or different legal theories. Vilsack, 883 F. Supp. 2d at 142 (quoting

Kremer v. Chem. Constr. Corp, 456 U.S. 461, 481 n.22 (1982)); see also Mwabira-

Simera v. Sodexho Marriott Mgmt. Servs., 786 F. Supp. 2d 395, 397 (D.D.C. 2011) (“A

cause of action, for the purposes of res judicata, comprises all rights of the plaintiff to

remedies against the defendant with respect to all or any part of the transaction, or

series of connected transactions, out of which the action arose.” (internal quotation

marks and citation omitted)); Polsby v. Thompson, 201 F. Supp. 2d 45, 50-51 (D.D.C.

2002) (“[E]ven though one group of facts may give rise to different claims for relief,

upon different theories of recovery, there remains a single cause of action.” (citation

omitted)).

       To determine whether the facts of each lawsuit are similar enough to qualify as

the same “cause of action,” the D.C. Circuit instructs courts to use a “transactional test”




                                              9
that looks at whether the claims arise from the same “nucleus of facts.” Apotex, 393

F.3d at 217 (internal quotation marks and citation omitted). To make this

determination, courts consider “whether the facts [from each case] 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. (quoting I.A.M Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d

944, 949 n.5 (D.C. Cir. 1983)). Importantly, claim preclusion “does not only bar claims

that were [actually] brought in a finally adjudicated suit; it also ‘forecloses all that

which might have been litigated previously.’” U.S. ex rel. Folliard v. Synnex Corp.,

798 F. Supp. 2d 66, 77-78 (D.D.C. 2011) (emphasis in original) (quoting Nat’l Pension

Fund, 723 F.2d at 949). In practice, this means that if the plaintiff could have included,

but did not include, certain facts in his initial lawsuit, he may not bring a second action

stemming from those facts. See Nat’l Pension Fund, 723 F.2d at 949; Folliard, 798

F.2d at 77-78.


III.   ANALYSIS

       Providence argues that res judicata bars Alford’s ADA claims because she should

have brought them in Alford I. (See Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s

Mem.”), ECF No. 8-1 at 2-6.) Alford responds that res judicata does not apply because

she could not have litigated the instant claims in Alford I, since (1) that case was

decided while the instant ADA claims were still pending before the EEOC (see Pl.’s

Opp’n. at 7-9), and (2) this case arises, in part, from facts that were not available to the

Alford I court (see id. at 3-4).




                                             10
          Despite Alford’s protests, this Court concludes that claim preclusion bars

Plaintiff’s complaint in its entirety. Three of the elements of the D.C. Circuit’s test for

claim preclusion are easily satisfied: (1) Alford and Providence are parties to both

suits, and (2) the federal district court is one of competent jurisdiction that (3) resolved

Alford I on a grant of summary judgment, which is a final judgment on the merits. (See

Compl. ¶¶ 2-4.) See Alford I, 945 F. Supp. 2d at 104-11. 7 Thus, the only element at

issue is whether the claims in Alford I and the instant matter involve the same cause of

action.

          Applying the D.C. Circuit’s “transactional test” to the case at bar, see Apotex,

393 F.3d at 217, it is clear beyond cavil that the FMLA and DCFMLA claims that

Plaintiff litigated in Alford I and the ADA claims alleged here constitute the same

“cause of action.” Both sets of claims turn on the same series of events that the Alford I

court already considered in reaching its conclusion that Plaintiff’s termination was

7
  In her opposition, Plaintiff contends that the decision in Alford I was neither “final” nor “on the
merits,” but this Court finds neither of these arguments persuasive. With respect to finality, Plaintiff
contends that Alford I was not final when she filed the instant complaint because it was wrongly
decided and still pending appeal in the D.C. Circuit. (See Pl.’s Opp’n at 2-3) But a judgment’s
accuracy has no bearing on the application of claim preclusion, see City of Arlington, Tex. v. FCC, 133
S. Ct. 1863, 1869 (2013), and in any event, the D.C. Circuit recently upheld the Alford I decision on
appeal. Alford v. Providence, No. 13-7096, 2014 WL 3013741, at *1 (D.C. Cir. June 20, 2014) (per
curiam). Second, Alford argues that the grant of summary judgment in Alford I was not “on the merits”
as claim preclusion requires, see Pailes v. U.S. Peace Corps, 783 F. Supp. 2d 1, 6 (D.D.C. 2009),
because the court based its opinion, in part, on credibility determinations. (See Pl.’s Opp’n at 4 (“It
appears . . . that the lower court rendered its decision on credibility issues as opposed to the merits.”).)
While the Alford I court granted summary judgment in part based on its finding that Plaintiff’s
testimony was not credible because she had contradicted herself in recounting the events surrounding
her termination, see Alford, 945 F. Supp. 2d at 107, the fact that the court mentioned credibility is of no
consequence, as it is well established that summary judgment—whatever its basis—constitutes a final
judgment on the merits for the purposes of claim preclusion. Prakash v. Am. Univ., 727 F.2d 1174,
1182 (D.C. Cir. 1984); Lans v. Adduci Mastriani & Shaumberg L.L.P., 786 F. Supp. 2d 240, 303
(D.D.C. 2011); see, e.g., Lindsey v. District of Columbia, 609 F. Supp. 2d 71, 77 (D.D.C. 2009) (“[The
D.C. District Court] granted summary judgment in the defendants’ favor. That ruling is binding on the
plaintiff under the doctrine of res judicata.” (internal citation omitted)). While Alford cites Vorhees v.
Time Warner Cable, 109 F. Supp. 2d 384, 387 (E.D. Pa. 2000), for the proposition that a decision on
summary judgment does not trigger res judicata dismissal of a later action, Vorhees clearly limited its
holding to cases where the plaintiff took affirmative steps to avoid claim preclusion by seeking to
consolidate her claims. Id.


                                                    11
lawful: (1) Alford’s workplace injury of April 2, 2010; (2) Defendant’s allegedly

unlawful conduct between December 2010 and January 2011; and (3) Alford’s

termination effective January 7, 2011. See Alford I, 945 F. Supp. 2d at 101. In fact, in

the instant complaint Plaintiff repeats—sometimes verbatim—many of the factual

allegations in the Alford I complaint. (Compare Compl. ¶¶ 6-10, 16-29 with Alford I

Compl. ¶¶ 11, 14, 16-17, 20-32.)

       What is more, the court in Alford I touched on the very issues at the heart of the

instant matter—to wit, the weight-lifting restrictions doctors had imposed and whether

Plaintiff could get to work and perform her job. See Alford I, 945 F. Supp. 2d at 108

(finding that “because she could not lift her wheelchair, Ms. Alford could not transport

herself and could not come to work [and] . . . stopped going to work”; therefore, “[t]he

Hospital had a legitimate, nondiscriminatory reason for terminating [ ] Alford[.]”).

Although some of the facts on which the claims rely differ slightly—e.g., Alford I

largely depended on the number of days Plaintiff took off from work, while the instant

claims turn more on whether there were any accommodations that would have allowed

Alford to perform her job—other circuits have found that claim preclusion bars ADA

claims arising from the same core set facts that were litigated or could have been

litigated in prior FMLA lawsuits. See, e.g., Hodges v. Publix Super Mkts., Inc., 372 F.

App’x 74, 76-78 (11th Cir. 2010); Howard v. Inova Health Care Serv., 302 F. App’x

166, 182 (4th Cir. 2008); Churchill v. Star Enters., 183 F.3d 184, 190-91 (3rd Cir.

1999). In short, Alford cannot recycle the same set of facts pertaining to her

termination and present them clothed in a different legal theory. Because the facts of

the two cases at issue here are nearly identical in “time, space, origin, [and]




                                            12
motivation,” and certainly would have “form[ed] a convenient trial unit[,]” Apotex, 393

F.3d at 217, they constitute the same “cause of action” for the purposes of claim

preclusion.

       Plaintiff nonetheless insists that this case presents a different “cause of action”

because it involves some new facts that were not included in Alford I. She offers two

sets of facts that she contends are unique to the instant complaint: factual allegations

about her ability to disassemble her wheelchair into smaller, more lightweight pieces so

that she could actually get to work (see Pl.’s Opp’n at 2-3); and the administrative

proceedings pertaining to her ADA claims, in particular the EEOC’s determination that

there was reasonable cause to believe that Providence had discriminated against Alford

on the basis of her disability (id. at 4-5; see also Letter of Determination at 3).

Certainly, the facts pertaining to Alford’s ability to disassemble her wheelchair were

available to her during Alford I, so Plaintiff could have used those facts to litigate her

ADA claims at that time. See Nat’l Pension Fund, 723 F.2d at 949; Folliard, 798 F.

Supp. 2d at 77-78. The EEOC’s Letter of Determination likewise fails to stave off the

preclusive effect of res judicata for two reasons. First, the EEOC issued the letter while

Alford I was still pending; thus, Plaintiff could have raised it in the prior litigation.

(See Pl.’s Opp’n at 3 (record citation omitted).) Moreover, even if Plaintiff did not

learn about the Letter of Determination until after Alford I was resolved, the letter itself

is of little consequence to proving a case of disability discrimination, since it is the

facts of Providence’s alleged discrimination—not the EEOC’s view of the evidence—

that gives rise to Alford’s ADA claim. See Hodge v. United Airlines, 821 F. Supp. 2d

180, 197 (D.D.C. 2011). Thus, the instant complaint does not allege new facts that




                                              13
could not have been raised during Alford I, so the two cases present the same “cause of

action.” See Nat’l Pension Fund, 723 F.2d at 949; Folliard, 798 F. Supp. 2d at 77-78.

       Plaintiff’s next contention—that the ADA’s mandatory exhaustion requirements

provide an escape hatch from claim preclusion on the grounds that she could not have

brought her ADA claims in Alford I because those claims were still winding their way

through the EEOC administrative process—fares no better. (See Pl.’s Opp’n at 7-11.)

Cf. Nat’l Pension Fund, 723 F.2d at 949 (noting that claim preclusion only applies to

claims that “might have been litigated” in the prior action); Folliard, 798 F. Supp. 2d at

77-78 (same). To be sure, ADA claims are subject to certain administrative exhaustion

requirements that do not apply to the claims in Alford I. In particular, Plaintiffs may

not file ADA claims in federal court without first receiving a right-to-sue notice from

the EEOC. See Dahlman v. AARP, 791 F. Supp. 2d 68, 74-75 (D.D.C. 2011); see also

42 U.S.C. § 12117. And the EEOC must issue a right-to-sue notice upon the plaintiff’s

request at any time after 180 days from filing of the administrative complaint or after

determining its inability to bring a civil charge. Adams v. District of Columbia, 740 F.

Supp. 2d 173, 186 (internal citations omitted); see also 29 C.F.R. § 1601.28(a)(1).

Unlike the ADA, the FMLA and DCFMLA have no exhaustion requirements, which

means that a plaintiff’s claims under these statutes are ripe for adjudication

immediately upon the adverse employment action. See Cruz-Packer v. District of

Columbia, 539 F. Supp. 2d 181, 190 (D.D.C. 2008) (no administrative exhaustion under

the FMLA); Jackson v. Wilkes Artis, 565 F. Supp. 2d 148, 152 n.4 (D.D.C. 2008) (same

under the DCFMLA). Accordingly, Alford chose to proceed straight to court on her

FMLA and DCFMLA claims, and she now contends that claim preclusion would




                                            14
unfairly punish her for not bringing her ADA claims before the EEOC determined that

conciliation with Defendant was no longer possible; in other words, although she could

have litigated all of her claims together in Alford I—a point Plaintiff appears to concede

(see Pl.’s Opp’n at 3 n.2 (noting that Alford could have requested a right-to-sue letter in

January 2012))—she should not be required to do so given the administrative

exhaustion requirements and the fact that she did not actually receive a right-to-sue

letter from the EEOC until August 20, 2013. (See Compl. ¶ 36.)

       The facts alleged in the complaint and existing law belie Plaintiff’s argument, for

they make clear that Alford did not have to stand by idly awaiting a right-to-sue notice

from the EEOC. A plaintiff in Alford’s position who has certain claims that might be

presented in federal court while parallel claims arising out of the same cause of action

are making their way through the EEOC’s administrative review channels at the same

time has three options: (1) file the EEOC complaint, await its outcome, and then file all

the claims simultaneously in the same complaint in district court; (2) file one

administrative complaint and one complaint in federal court, then seek to stay the latter

pending the outcome of the former; or (3) file both the EEOC complaint and the federal

district court complaint, request a right-to-sue notice after 180 days, see 42 U.S.C.

§ 2000e-5(f)(1), then seek to amend the federal complaint to include the additional

claims. See Robinson v. District of Columbia, No. 99-1694, 2000 U.S. Dist. LEXIS

14476, at *12 (D.D.C. Sept. 30, 2000) (holding that res judicata barred the plaintiff’s

claims because he had the latter two options available to him (citations omitted)); see

also Howard, 302 F. App’x at 182 (noting that the plaintiff could have gone through the

administrative process before filing any in-court complaint). Alford chose none of




                                            15
these alternatives, and she cannot now be heard to complain that it is somehow unfair to

conclude that she missed her opportunity to bring the claims that worked their way

through the EEOC process into federal court.

        A court in this district addressed this scenario in Robinson v. District of

Columbia, No. 99-1694, 2000 U.S. Dist. LEXIS 14476 (D.D.C. Sept. 30, 2000). In that

case, the plaintiff filed a complaint with the EEOC alleging that his employer, the

District of Columbia Metropolitan Police Department (“MPD”), had discriminated

against him on the basis of his race, color, and personal appearance under Title VII by

ordering him to cut his hair. Id. at *2. While that complaint was pending before the

EEOC, the plaintiff filed suit against the MPD in federal court, alleging violations of

various statutory and constitutional rights. Id. at *3 (citation omitted). 8 As here, while

the federal case proceeded through litigation, the EEOC issued a Letter of

Determination finding probable cause to believe that the MPD had discriminated against

the plaintiff. Id. at *4. After the 180-day window had passed, instead of requesting a

right-to-sue letter, the plaintiff waited to see if the EEOC would file a civil action on

his behalf. Id. at *3-5. Meanwhile, the plaintiff’s first case ended in a judgment for the

defendant. Id. 9 The EEOC issued a right-to-sue letter three weeks later. Id. at *5. The

Robinson court concluded that res judicata barred the plaintiff’s second action because

he could have either sought a stay of his first case pending the outcome of the




8
 Specifically, the complaint in the first-filed action in Robinson alleged race discrimination under 42
U.S.C. § 1981, civil rights deprivation under 42 U.S.C. § 1985, and violation of the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb. See Robinson, 2000 U.S. Dist. LEXIS 14476, at *3.
9
 In the Robinson plaintiff’s first action, the court granted summary judgment to the defendant on
several of the claims, while a jury reached verdict in favor of the District on the others. See Robinson,
2000 U.S. Dist. LEXIS 14476, at *4-5.


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administrative process or requested his right-to-sue notice after 180 days had passed

and amended his federal-court complaint accordingly. Id. at *12-14.

       So it is here. After her termination, Alford could have filed Alford I, requested a

stay pending the outcome of the EEOC process, and amended her Alford I complaint at

a later date; or, had Alford preferred to litigate sooner and chosen to forego the benefits

of the EEOC process, she could have requested a right-to-sue notice in January of 2012,

while Alford I was still in discovery, and sought to amend the district court complaint to

add the ADA claim. (See Pl.’s Opp’n. at 3 n.2.) See Robinson, 2000 U.S. Dist. LEXIS

14476, at *3-5. Alternatively, Alford could have kept her litigation powder dry,

awaiting completion of the EEOC process, and then filed all of the claims in the same

complaint in federal district court. See Howard, 302 F. App’x at 182. Given the

options at her disposal and the availability of the necessary facts, Alford certainly could

have sought to consolidate all of her legal claims in a single action, and it was her

responsibility to do so to avoid preclusion. See Churchill, 183 F. 3d at 191 (noting that

plaintiffs “should organize litigation that they are pursuing to avoid claim preclusion”).

In other words, like the plaintiff in Robinson, Alford “did not have to sit on [her]

rights[,]” and having chosen to do so, she “cannot now escape the consequences.”

Robinson, 2000 U.S. Dist. LEXIS 14476 at *13.

       Undaunted, Alford makes a final attempt to distinguish her case from Robinson

on the grounds that she was not simply awaiting an EEOC determination, but rather had

chosen to participate in EEOC proceedings aimed at conciliation. (See Pl.’s Opp’n at

7.) In the Court’s view, this fact makes matters worse for Alford, not better, because it

means that she was actively engaged in settlement negotiations about claims that were




                                            17
simultaneously being litigated in federal court. Perhaps Alford reasoned that this “race

to the finish” approach to final judgment would benefit her bottom line because she

could get an offer from Defendants in the negotiations process and compare that sum to

the amount that a jury might be willing to award. But the litigation process is not to be

used as a hedge against the possibility of a less-than-satisfactory outcome at the

bargaining table. And, in any event, because conciliation is not a mandatory procedure

from the standpoint of exhaustion of remedies, Alford still retained the option (which

she should have exercised) to request a right-to-sue notice in order to bring her ADA

claims into the ongoing litigation in federal court. Cf. Hill v. Metro. WMATA, 231 F.

Supp. 2d 286, 292-94 (D.D.C. 2002) (noting that, regardless of the status of the EEOC’s

investigation, a plaintiff may request a right-to-sue notice and file a civil suit so long as

180 days have passed). Although Alford tries to characterize the procedural course of

this case as one in which she chose the “legislatively and judicially favored method of

relying on administrative processes” over resorting to litigation in court (see Pl.’s

Opp’n. at 8 (citing Occidental Life Ins. Co. v. EEOC, 432 U.S. 368, 373(1977))), the

truth of the matter is that, whether motivated by greed, risk-aversion, or something else,

she opted to sit on the sidelines and allow Alford I to proceed all the way to summary

judgment instead of proactively taking control of her claims.

       In the final analysis, it also important to note that Alford is not the only party

with interests at stake in these cases; rather, Providence, as the defendant in both

lawsuits, has a right of protection from “repetitious litigation involving the same causes

of action[.]” Jenson v. Huerta, 828 F. Supp. 2d 174, 179 (D.D.C. 2011). There was

little reason for Alford to believe that Providence would cooperate in the EEOC




                                             18
conciliation process while defending itself in a parallel federal lawsuit based on the

same exact facts. Cf. Occidental Life Ins. Co., 432 U.S. at 368. Even so, nothing in the

text of the ADA or the FMLA suggests that conciliation provides an exception to claim

preclusion, see Churchill, 183 F.3d at 192-94, and, indeed, allowing such a rule could

encourage plaintiffs to manipulate the EEOC process simply to bring two separate suits

against their employers. Just as in Robinson, Alford is not spared from res judicata

merely because she allowed her ADA claims to meander through the administrative

process. Alford took no steps to preserve her claims, and the facts presented compel

only one result: claim preclusion bars the instant complaint in its entirety.


IV.    CONCLUSION

       For the reasons set forth above, this Court concludes that claim preclusion bars

Alford’s claims. Accordingly, the Court GRANTS Defendant’s motion to dismiss.



DATE: July 25, 2014                       Ketanji Brown Jackson
                                          KETANJI BROWN JACKSON
                                          United States District Judge




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