                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-1745
                                      _____________

                                  ARTHUR L. STONE,
                                                Appellant

                                             v.

                                     JEH JOHNSON,
                   Acting Secretary, Department of Homeland Security
                                    ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (District Court No. 2-13-cv-03765)
                          District Judge: Hon. Stewart Dalzell
                                    ______________

                               Argued: November 20, 2014
                                   ______________

       Before: McKEE, Chief Judge, RENDELL and SLOVITER, Circuit Judges.

                                   (Filed: June 23, 2015)

                               _______________________

                                      OPINION*
                               _______________________




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             1
Dennis L. Friedman, Esq.          [ARGUED]
Suite 714
1515 Market Street
Philadelphia, PA 19102
       Counsel for Appellant

Richard M. Bernstein, Esq.       [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee


MCKEE, Circuit Judge.

      Plaintiff Arthur L. Stone appeals the District Court’s order granting the

Department of Homeland Security’s Motion to Dismiss in the action that Stone filed

alleging employment discrimination on the basis of his disability. For the reasons that

follow, we will reverse the order of the District Court and remand.1

                                            I.

      Stone was a Federal Air Marshal employed by the Transportation Security

Administration (“TSA”). He was removed from his position because he had a medical

condition that rendered him unable to perform his duties. Less than a year after being

removed, he claimed to have recovered and requested that he be returned to duty.

However, he continued to receive disability benefits from the Office of Workers’

Compensation Program (“OWCP”). When the TSA refused to reinstate him, Stone filed

a complaint before the Equal Employment Opportunity Commission alleging

1
 The District Court had jurisdiction of this case pursuant to 42 U.S.C. § 2000e-16(c).
This court has jurisdiction of this appeal under 28 U.S.C. § 1291.

                                            2
discrimination in violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. §

791 et seq., as reprisal for “engaging in prior EEO activity challenging his termination.”

The Administrative Judge ruled in favor of the TSA, concluding that, although Stone

established a prima facie case of reprisal, the TSA articulated a legitimate,

nondiscriminatory reason for its action: Stone continued to receive benefits. The

Commission affirmed the Administrative Judge’s order.

       Stone appealed the EEOC’s affirmance of the Administrative Judge’s order to the

District Court. The Department of Homeland Security (“DHS”) filed a motion to

dismiss, contending that Stone’s action should be dismissed as collaterally estopped. The

District Court granted the motion and this appeal followed.2

                                             II.

       Four requirements must be met in order for a claim to be collaterally estopped: (1)

the identical issue must have been previously adjudicated; (2) the issue must have been

actually litigated; (3) the previous determination of the issue must have been necessary to

the decision; and (4) the party being precluded from relitigating the issue must have been

fully represented in the prior action. Jean Alexander Cosmetics, 458 F.3d at 249. Mr.

Stone does not deny that all four factors are present here. Stone contends, however, that


2
  We exercise plenary review of a district court’s order granting a motion to dismiss on
the basis of collateral estoppel. See, e.g., Jean Alexander Cosmetics, Inc. v. L'Oreal USA,
Inc., 458 F.3d 244, 248-49 (3d Cir. 2006). Such a motion to dismiss under Rule 12(b)(6)
should be “granted only if, accepting the well-pleaded allegations in the complaint as true
and viewing them in the light most favorable to the plaintiff, a court concludes that those
allegations ‘could not raise a claim of entitlement to relief.’” Simon v. FIA Card Servs.,
N.A., 732 F.3d 259, 264 (3d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007)).

                                             3
the District Court should not have relied on the EEOC’s ruling that the TSA did not

discriminate against him because the EEOC’s decision was “not a final, unappealable

decision” and that he is entitled to trial de novo under 5 U.S.C. §§ 7702(a)(3)(B), (e)(1)

and § 7703. We agree.

       Agency decisions under Title VII do not have preclusive effect because, under that

statute, federal employees are entitled to a trial de novo of their employment

discrimination claims in federal court. See Chandler v. Roudebush, 425 U.S. 840, 845

(1976). While Stone’s claim of discrimination arises under the Rehabilitation Act of

1973,3 instead of Title VII, we have previously explained that federal employees suing

under the Rehabilitation Act are also entitled to de novo review of administrative

decisions in federal court:

       On conclusion of the administrative proceeding, a district court may
       provide two distinct forms of relief. First, a federal employee who prevails
       in the administrative process may sue in federal court to enforce an
       administrative decision with which an agency has failed to comply. Such
       an enforcement action does not trigger de novo review of the merits of the
       employee's claims. . . . Alternatively, a federal employee unhappy with the

3
  In his brief before this court, Stone argued he was “alleging that the Agency had failed
to restore him to his position, in violation of the restoration regulations and that the
Agency’s decision to deny him his restoration rights was motivated by impermissible
discrimination under the Rehabilitation Act and, in particular, in reprisal for his having
engaged in prior EEO activity.” (Appellant Br. at 2-3.) Likewise, in his Amended
Complaint before the District Court, Stone stated that “the Agency had failed to restore
him to his position, in violation of the restoration regulations and that the Agency's
decision to deny him his restoration rights was motivated by impermissible
discrimination under the Rehabilitation Act of 1973 and, in particular, in reprisal for his
having engaged in prior EEO activity.” (J.A. 63.) In its decision, the EEOC also noted
that “in his decision, the [ALJ] referred to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (Title VII). Complainant's reprisal allegation, however, falls
under the Rehabilitation Act.” (J.A. 26.)


                                             4
       administrative decision may bring his or her claims to a district court, under
       Section 505(a) of the Rehabilitation Act, 29 U.S.C. § 794a(a), and receive
       the same de novo consideration that a private sector employee enjoys in a
       Title VII action, under 42 U.S.C. § 2000e-16(c).

Morris v. Rumsfeld, 420 F.3d 287, 290 (3d Cir. 2005) (citing Chandler, 425 U.S. at 863.

Because Stone appealed the EEOC’s decision, the District Court should have reviewed

Stone’s claims de novo. Therefore, it erred in dismissing Stone’s suit as collaterally

estopped.

                                            III.

       For the reasons set forth above, we will reverse the judgment of the District Court

and remand for proceedings in accordance with this decision.




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