                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                         ------------------------------------------- U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                      No. 05-14243                          May 30, 2006
                                Non-Argument Calendar                   THOMAS K. KAHN
                        --------------------------------------------         CLERK

                      D.C. Docket No. 03-01469-CV-2-P-S

SANDRA J. GARDNER,


                                                         Plaintiff-Appellant,

                                          versus


JIM NICHOLSON,
Secretary, Department of Veterans Affairs,


                                                         Defendant-Appellee.


              ----------------------------------------------------------------
                   Appeal from the United States District Court
                      for the Northern District of Alabama
              ----------------------------------------------------------------
                                    (May 30, 2006)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.


PER CURIAM:
        Sandra J. Gardner, an African-American woman proceeding pro se, appeals

the district court’s grant of summary judgment, on the basis of res judicata and

untimeliness, in her employment discrimination case, brought under Title VII, 42

U.S.C. § 2000e. No reversible error has been shown; we affirm.

        In this case, Gardner filed a complaint in June 2003 against then-Secretary

of the Department of Veterans Affairs, Anthony J. Principi, as the representative

of her former employer, the Birmingham Veterans Affairs Medical Center

(“BVAMC”). Gardner alleged employment discrimination and retaliation based

on age, “presumed” disability, and race, starting when she filed her first Equal

Employment Opportunity Commission (“EEOC”) complaint in August 1999 and

continuing until her employment ended in February 2001.

        Gardner was a plaintiff in a previous class-action suit, Hampton, et al. v.

Secretary, Department of Veterans Affairs (“Hampton”), filed in district court1 by

Gardner and 14 other African-American persons, alleging violations of Title VII

based on retaliation and on race and gender discrimination. The Hampton

amended complaint alleged that Gardner, specifically, was discriminated against

between October 2000 and March 2001. The district court in Hampton granted the



  1
    This case initially was filed in the District Court for the District of Columbia, but was transferred
to the District Court for the Northern District of Alabama.

                                                   2
Secretary’s motion for summary judgment based on Fed.R.Civ.P. 36(b), because

Gardner and the other plaintiff-employees, who were represented by counsel, had

failed to respond to the Secretary’s discovery requests and requests for admissions.

The district court opined that the plaintiffs, thus, were deemed to have admitted

the Secretary’s facts. The district court also noted that one of the plaintiffs

committed a fraud on the court by forging a judge’s signature on an order. This

Court affirmed the summary judgment decision based on the defaulted admissions

and on the attempted fraud on the court.

      While Hampton was pending in district court, Gardner also was the plaintiff

in an EEO proceeding, Gardner v. Principi (“Principi”). The administrative law

judge (“ALJ”) in Principi split some of Gardner’s EEO claims because these same

claims were pending in Hampton. On the remaining claims, the ALJ determined

that Gardner had provided enough evidence to prove that she was subjected to

unlawful retaliation from June to October 2000, but that Gardner had not shown

harassment based on sex or disability. The ALJ noted that, based on Gardner’s

four EEO complaints, the complained-of harassment took place from late 1999

until 2001. The ALJ ordered the Secretary to pay $20,000 in damages. In June

2002, the VA issued a final order adopting the ALJ’s decision and informing

Gardner that she could appeal to the EEOC within 30 days, or that she could file a

                                           3
civil action in the district court within 90 days. In February 2003, the EEOC

dismissed Gardner’s appeal as untimely.

      In this case, the Secretary moved for summary judgment based on res

judicata and untimeliness. The district court initially denied this motion and

allowed Gardner to provide a more detailed description of her claims and an

explanation why she had not raised the claims in either Hampton or Principi.

After receiving Gardner’s response, the district court granted the Secretary’s

renewed motion for summary judgment. Gardner now appeals.

      We review a district court’s grant of summary judgment de novo, viewing

the facts--as supported by the evidence in the record--and reasonable inferences

from those facts in the light most favorable to the nonmoving party. Young v.

City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). Summary judgment is

proper where no genuine issue of material fact exists. Id. We also review de novo

a district court’s determination of res judicata or collateral estoppel. E.E.O.C. v.

Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004), cert. denied, 126

S.Ct. 42 (2005).

      A claim will be barred by prior litigation if (1) a final judgment was

rendered on the merits; (2) a court of competent jurisdiction made the decision; (3)

the parties, or those in privity with them, are identical in both suits; and (4) the

                                           4
same cause of action is involved in both cases. Ragsdale v. Rubbermaid, Inc., 193

F.3d 1235, 1238 (11th Cir. 1999).

      The district court correctly determined that the Principi decision, even

though an administrative determination, had res judicata effect. See United States

v. Utah Constr. & Mining Co., 86 S.Ct. 1545, 1560 (1966) (writing that res

judicata may apply to administrative agency determinations when agency “is

acting in a judicial capacity and resolved disputed issues of fact properly before it

which the parties have had an adequate opportunity to litigate”). The VA issued a

final order adopting the ALJ’s decision on the merits: we reject Gardner’s

contention that the ALJ’s decision was “interlocutory.” The parties are the same.

Gardner has attempted to raise claims identical to those raised in Principi. The

allegations in both suits involve overlapping times. Both suits alleged reprisal for

earlier EEO activity; both suits raised claims of mistreatment by BVAMC

management. Gardner’s claims, thus, arose out of the same nucleus of operative

facts. And, Gardner had a full and fair chance to litigate these issues in the

administrative proceeding.

      To the extent that Gardner was attempting to seek review of the Principi

decision in district court, her complaint properly was dismissed as untimely.

Gardner filed her complaint nearly one year after the final agency decision; and

                                          5
she has not shown that she is entitled to equitable tolling of the 90-day limitation

period. See 29 C.F.R. § 1614.407 (requiring EEOC claimant to file Title VII

discrimination action in district court within 90 days of final agency decision);

Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir.), cert. denied, 125

S.Ct. 656 (2004) (stating that equitable tolling is “extraordinary remedy”).

      And the district court did not err in determining that the Hampton decision,

also, should be accorded res judicata effect. The parties are the same. The claims

in both suits involve overlapping times and similar allegations of harassment,

discrimination, and reprisal. Gardner’s claims arose out of the same nucleus of

operative fact and relied on the same factual predicate.

      Gardner argues that Hampton resulted in a default judgment that should not

be accorded res judicata effect. But Gardner substantially participated in the

Hampton litigation, she was counseled, and she had a fair opportunity to litigate

her claims, but she chose not to do so. Summary judgment was granted on the

deemed admissions of the parties and on the fraudulent acts of one of the

plaintiffs. See In re Bush, 62 F.3d 1319, 1324 (11th Cir. 1995) (giving preclusive

effect to default judgment against bankruptcy debtor as sanction for fraud, where

debtor actively participated in litigation, was counseled, but later engaged in

deliberately obstructive conduct). Hampton, thus, was decided on the merits.

                                          6
       In sum, based on the decisions reached in Principi and in Hampton,

Gardner’s claims in this case are barred by res judicata.2 The district court

properly granted summary judgment.

       AFFIRMED.




  2
    We reject Gardner’s argument that the Secretary waived the defense of res judicata by agreeing
to split the claims between Hampton and Principi. The Secretary raised this defense at his first
opportunity in the district court.

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