                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

                               )
MARKUS JAHR,                   )
                               )
     Plaintiff,                )
                               )
     v.                        ) Civ. Action No. 00-02423 (EGS)
                               )
THE DISTRICT OF COLUMBIA,      )
                               )
     Defendant.                )
                               )

                        MEMORANDUM OPINION

     In October 2000 Plaintiffs Robert Aronson and Markus Jahr

first brought this action alleging racial discrimination in

violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq., against defendant the District

of Columbia.   On December 26, 2001, upon consideration of

Plaintiffs’ request that they be allowed to exhaust their

administrative remedies in their pending appeals to the District

of Columbia Office of Employee Appeals before continuing with

this litigation, this Court dismissed the Complaint without

prejudice to the subsequent filing of a motion to reinstate

following disposition of Plaintiffs’ appeals.     On December 10,

2012, Plaintiff Markus Jahr filed a motion to reinstate the case,

which is now ripe for determination.   Upon consideration of

Plaintiff’s motion, the District’s Opposition and reply thereto,
the applicable law, the case record, and for the reasons set

forth below, Mr. Jahr’s motion to reinstate is DENIED.

I.   BACKGROUND

     A.     Factual Background

     Markus Jahr and Robert Aronson were employed by the

District of Columbia Fire and Emergency Services Department

(“the Department”) as paramedics assigned to an Advanced Life

Support ambulance, and were responsible for providing emergency

medical care to injured persons in the District of Columbia.

Jahr v. Dist. of Columbia Office of Employee Appeals, 19 A.3d

334, 336 (D.C. 2011) (“Jahr IV.     On the afternoon of January 1,

1999, Mr. Jahr and Mr. Aronson were dispatched to 800 Nicholson

Street, NE to respond to a motor vehicle accident involving a

trapped victim.    Id.   After transporting the accident victim to

Washington Hospital Center (“WHC”), they were required by

Department policy to return to their quarters by the most direct

route.    Id.   Instead, Mr. Aronson told Mr. Jahr that he needed

to fill a personal prescription at a pharmacy, and they took the

ambulance to a Target Store located at the Potomac Yards

Shopping Center in Alexandria, Virginia.     Id.

     The ambulance was seen in the shopping center parking lot

by a former employee, who reported the ambulance’s location to

Lieutenant John Clayton at the Department’s Communications

Division.    Jahr v. DC Fire & Emergency Medical Services

                                   2
Department, OEA Matter No. 1601-0180-99 at 4 (May 29, 2003)

(“Jahr I”).   Upon learning this information, the EMS Shift

Supervisor on duty, Captain Jerome Stark, contacted WHC staff

via telephone to verify the ambulance’s location, and sent a

Lieutenant to the hospital to confirm the location, who searched

for but could not locate the ambulance at the hospital.    Id. at

5.

     Sixteen minutes after the ambulance was seen in Virginia,

Mr. Jahr called the Communications Division and asked for more

time to retrieve the ambulance’s clipboard, which he claimed had

been left behind at WHC.    Id.   When asked his current location,

Mr. Jahr said they “were in front of the Washington Hospital

Center.”   Id. at 9.    Even after the operator told Mr. Jahr that

the ambulance was not at WHC and that a lieutenant was at WHC

looking for the ambulance, Mr. Jahr continued to insist that the

unit was there.   Id.   Mr. Jahr later admitted that he was in

Alexandria running a personal errand with Mr. Aronson at the

time the ambulance was seen at Potomac Yards.    Id.

     After the Department learned of Mr. Jahr and Mr. Aronson’s

conduct, their Platoon Chief Supervisor, Captain Jerry Stack,

recommended that they be suspended without pay for a period not

exceeding twenty days.    Compl. ¶ 8.   However, Deputy Fire Chief

Lillian Carter and the Department’s Medical Director, Dr. Wayne



                                   3
E. Moore, recommended that Mr. Jahr and Mr. Aronson be

terminated from employment.      Id. ¶ 10.

     The Department issued a notice of proposal to terminate Mr.

Jahr from his position on January 14, 1999, which listed the

charges as dishonesty and inefficiency.      Id. ¶ 12.   On February

12, 1999, during an informal hearing on the merits of the

allegations against Mr. Jahr and Mr. Aronson, Assistant Fire

Chief Floyd Madison recommended that the adverse actions against

them be withdrawn without prejudice to enable the Department to

institute new adverse actions.      Id. ¶ 13.   The notice was

withdrawn and subsequently reinstated on February 16, 1999

listing charges of dishonesty and inexcusable neglect of duty.

Id. ¶ 15.    The final Department decision to terminate Mr. Jahr

was issued on April 5, 1999, and he was removed on May 8, 1999. 1

Id. ¶ 8.

     B.     Procedural History

     On May 28, 1999, Mr. Jahr filed a petition for appeal from

the Department’s notice of his termination in the District of

Columbia Office of Employee Appeals (“OEA”).       Jahr I, OEA Matter

1601-0180-99, at 1.    In his appeal Mr. Jahr argued, inter alia,

that the penalty of removal for his conduct was disparate in

comparison to the penalties given to other employees who were

1
  This was Mr. Jahr’s second violation involving dishonesty. He
was previously suspended for fifteen days for falsification of
material facts. Jahr, 19 A.3d at 337 n.3.
                                    4
found guilty of committing similar, identical, or more severe

misconduct.    Id. at 13.

     On October 10, 2000, while Mr. Jahr’s OEA action was still

pending, Mr. Jahr and Mr. Aronson filed a complaint in this

Court seeking monetary damages and equitable relief from the

District of Columbia on the grounds that their termination was a

result of disparate treatment in violation of Title VII of the

Civil Rights Act of 1964.    Compl. at 1.   Specifically, they

alleged that the Department’s decisions to ignore the

recommendation of their superior officer that they be suspended

without pay, institute an adverse action after the dismissal of

an initial proceeding, and “impose a sanction disproportionate

to the discipline the Department had previously imposed . . .

upon African-American employees guilty of similar misconduct”

were “the discriminatory results of the racial bias of its

African-American officials against its Caucasian employees.”

Compl. ¶ 19.    On December 26, 2001, this Court dismissed the

Complaint without prejudice to allow Mr. Jahr and Mr. Aronson to

exhaust their administrative remedies in their pending appeals

to the OEA.    Order to Dismiss at 1, ECF No. 13.

     On October 31, 2002 a hearing was held before an

Administrative Law Judge (“ALJ”) regarding Mr. Jahr’s OEA appeal.

Jahr I, OEA Matter No. 1601-0180-99 at 3.     In an initial

decision issued on May 29, 2003, the ALJ concluded that Mr. Jahr

                                  5
had failed to show that he was treated differently than other

similarly situated employees.    Id. at 13-15.   In further appeals,

the ALJ’s decision was subsequently upheld by the full OEA Board

and the D.C. Superior Court.    Jahr, 19 A.3d at 336.   Finally, Mr.

Jahr appealed to the District of Columbia Court of Appeals, and

was again denied the relief he sought.    In 2011, the Court of

Appeals affirmed the OEA’s decision, including the OEA’s finding

that Mr. Jahr was not subject to disparate treatment in the

imposition of his penalty.    Jahr, 19 A.3d at 338.

      On December 10, 2012, Mr. Jahr filed a motion to reinstate

the case that was dismissed by this Court on December 26, 2001.

Mot. to Reinstate at 1, ECF No. 15.

II.   STANDARD OF REVIEW

      “The preclusive effect of a judgment is defined by claim

preclusion and issue preclusion, [also known as collateral

estoppel,] which are collectively referred to as res judicata.”

Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (internal quotation

marks omitted).   Under collateral estoppel, “once a court has

decided an issue of fact or law necessary to its judgment, that

decision may preclude relitigation of the issue in a suit on a

different cause of action involving a party to the first case.”

U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 696

(D.C. Cir. 2009) (quoting Novak v. World Bank, 703 F.2d 1305,

1309 (D.C. Cir. 1983)).    By precluding parties from contesting

                                  6
matters they have already had a full and fair opportunity to

litigate, collateral estoppel “conserve[s] judicial resources,

avoid[s] inconsistent results, engender[s] respect for judgments

of predictable and certain effect, and [] prevent[s] serial

forum-shopping and piecemeal litigation.”   McGee v. District of

Columbia, 646 F. Supp. 2d 115, 123 (D.D.C. 2009) (internal

quotation marks omitted).

     Courts apply the preclusion law of the court in which the

first proceeding was brought, and when this is a state court,

the state’s law of preclusion applies.   Kremer v. Chem. Const.

Corp., 456 U.S. 461 at 481-482 (1982); cf. Youngin's Auto Body v.

Dist. of Columbia, 775 F. Supp. 2d 1, 5-6 (D.D.C. 2011).   Under

District of Columbia law, collateral estoppel “prohibits ‘the

relitigation of factual or legal issues decided in a previous

proceeding and essential to the prior judgment.”   Franco v. Dist.

of Columbia, 3 A.3d 300, 303-04 (D.C. 2010) (quoting Elwell v.

Elwell, 947 A.2d 1136, 1140 (D.C. 2008)).   The Supreme Court has

held that a “state administrative decision in the employment-

discrimination context is entitled to preclusive effect in a

subsequent Title VII suit where that decision has been reviewed

and affirmed by the state courts.”   Bagenstose v. Dist. of

Columbia, 503 F. Supp. 2d 247, 260 (D.D.C. 2007) (citing Kremer,

456 U.S. at 479-80); see also University of Tenn. V. Elliot, 478

U.S. 788, 799 (“[W]hen a state agency acting in a judicial

                                7
capacity . . . resolves disputed issues of fact properly before

it which the parties have had an adequate opportunity to

litigate, federal courts must give the agency’s factfinding the

same preclusive effect to which it would be entitled in the

State’s courts.”) (internal quotation marks omitted).

      Collateral estoppel applies when: “(1) the issue is

actually litigated and (2) determined by a valid, final judgment

on the merits; (3) after a full and fair opportunity for

litigation by the parties or their privies; (4) under

circumstances where the determination was essential to

the judgment, and not merely dictum.”    Modiri v. 1342 Rest.

Group, Inc., 904 A.2d 391, 394 (D.C. 2006) (quoting Davis v.

Davis, 663 A.2d 499, 501 (D.C. 1995)).    When applicable,

collateral estoppel renders conclusive the determination of

issues of fact or law that have been previously decided.     Franco,

3 A.3d at 304.

III. DISCUSSION

     A.   The Issue Decided

     For collateral estoppel to apply, “the previously resolved

issue must be identical to the one presented in the current

litigation; similarity between the issues is insufficient.”

Dist. of Columbia v. Gould, 852 A.2d 50, 56 (D.C. 2004) (citing

Hutchinson v. Dist. of Columbia Office of Employee Appeals, 710

A.2d 227, 236 (D.C. 1998).    The District argues that the OEA

                                  8
determined that “Jahr did not establish that any similarly-

situated employee was treated differently;” therefore, Mr. Jahr

is barred from relitigation in this court.    Opp’n at 3 (quoting

Jahr III, 19 A.3d at 341).   Mr. Jahr, however, suggests that

“the issue of race discrimination was not directly at issue in

[his] claims before the OEA,” because “issues of disparate

treatment were considered only because it was relevant to the

appropriateness of the proposed penalty.”    Reply at 3.   The

Court does not agree.   The precise issue resolved in the OEA

proceeding was whether Mr. Jahr was treated differently in his

termination than other similarly situated employees, which is

identical to the Title VII claim Mr. Jahr has moved to reinstate

in this court.   That it was decided in the context of whether

the penalty was appropriate does not defeat its preclusive

effect.

     In upholding Mr. Jahr’s termination by the Department, the

OEA Administrative Law Judge (“ALJ”) addressed two major

questions: (1) “[w]hether the [Department] action was taken for

cause;” and (2) “[w]hether [Mr. Jahr’s] penalty was appropriate

under the circumstances.” Jahr I, OEA Matter 1601-0180-99 at 3.

When a charge is upheld, the OEA will not disturb the penalty if

it “is within the range allowed by law, regulation, or

guidelines and is clearly not an error of judgment.”    Id. at 12.

(internal quotation marks omitted).   The ALJ determined that Mr.

                                 9
Jahr’s penalty was within the range allowed by the Table of

Appropriate Penalties, and that it was clearly not an error of

judgment.   Id. at 12-13.   After finding that Mr. Jahr’s

termination was for cause, the ALJ also considered what are

known as the Douglas factors, which the OEA has adopted as

factors to be considered by an agency in its determination of an

appropriate penalty.   Id. (citing Douglas v. Veterans Admin., 5

M.S.P.R. 280, 305-306 (M.S.P.B. Apr. 10, 1981).

     In Douglas, the Merit Systems Protection Board recognized

twelve factors “generally recognized as relevant” in determining

the appropriateness of a penalty.      Those factors include, inter

alia: (1) the employee’s job level and type of employment; (2)

the employee’s past disciplinary record; (3) the employee’s past

work record; and (4) the consistency of the penalty with those

imposed upon other employees for the same or similar offenses.

Douglas, 5 M.S.P.R. at 305-306.

     Because Mr. Jahr claimed “that he was not treated the same

as other individuals in the Department,” the ALJ gave special

attention to one of the Douglas factors – whether there is

“consistency of the penalty with those imposed upon other

employees for the same or similar offenses.”     Jahr I, OEA Matter

1601-0180-99 at 13; see Douglas, 5 M.S.P.R. at 305.     To show

disparate treatment, “the employee must show that he or she

worked in the same organizational unit as the comparison

                                  10
employees and that they were subject to discipline by the same

supervisor within the same general time period.”   Id. (citing

Carrol v. Department of Health and Human Services, 703 F.2d 1388,

1389 (Fed. Cir. 1983) (finding that an employee failed to show

she was treated disparately because she only proffered evidence

of comparison employees who worked in different organizational

units and were disciplined by different supervisors)).    Upon

consideration of the evidence submitted by Mr. Jahr, the ALJ

concluded that he had failed to show disparate treatment because

the comparison employees did not work under the same supervisor

or in the same department as Mr. Jahr.   Id. at 13-14.

     On appeal from the ALJ’s initial decision, the full board

of the OEA reviewed the decision and affirmed the ALJ’s

determination that Mr. Jahr had failed to show disparate

treatment.   Jahr v. D.C. Fire and Emergency Medical Services,

OEA Matter No. 1601-0180-99 (February 27, 2007) (“Jahr II”).     In

reviewing this determination, the Board noted that Mr. Jahr had

“failed to meet his burden of proof in establishing a prima

facie case,” because he “did not show that he was treated

differently than those similarly situated,” and because “[n]one

of the comparison employees to which [Mr. Jahr] attempts to

liken himself[] had a previous disciplinary action against

them,” or “were under the same supervisor.”   Id. at 9-10.



                                11
     In upholding the OEA’s decision, the D.C. Superior Court

also considered whether Mr. Jahr was subject to disparate

treatment.   Jahr v. Dist. of Columbia, No. 2007 CA 2215P, 2009

WL 8153670 (D.C. Super. April 9, 2009) (“Jahr III”).      The court

concluded, like the ALJ and the OEA board, that Mr. Jahr had

failed to show disparate treatment.     Id. at 4 (citing O’Donnell

v. Associated Gen. Contractors of Am., Inc. 645 A.2d 1084, 1088-

89 (D.C. 1994) (concluding that a female employee failed to

establish a prima facie case of disparate treatment on the basis

of sex pursuant to Title VII because she did not proffer

evidence of similarly situated male employees treated

differently in the manner of their termination).      In fact, the

court found that like other employees who had been terminated

for similar behavior, Mr. Jahr had a history of deceptive and

dishonest behavior within the agency.     Id.   With respect to

employees that Mr. Jahr claimed were subject to less severe

penalties, the court found they were not similarly situated

because Mr. Jahr did not establish that they worked under the

same supervisor.    Id.   The D.C. Court of Appeals affirmed the

Superior Court’s decision, holding that Mr. Jahr failed to

“establish that any similarly-situated employee was treated

differently. 2   Jahr, 19 A.3d at 341 (citing Hutchinson, 710 A.2d


2
 Different courts use differing standards to determine whether
comparison employees are “similarly situated.” In this Court,
                                  12
227 (holding that an employee failed to show disparate treatment

in his termination from D.C. Fire Department, because he failed

to identify employees with similar disciplinary backgrounds who

had been treated differently)).

      The OEA, the OEA Board, the D.C. Superior Court, and the

Court of Appeals all decided a common issue: whether Mr. Jahr

was treated differently than other similarly situated employees,

i.e. whether he was subject to disparate treatment.   Mr. Jahr is

therefore precluded from raising that issue again in federal

court.   Once an issue is raised and determined, the entire issue

is precluded, not just particular arguments raised in support of

it.   See Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254,

258-59 (D.C. Cir. 1992) (“If a new legal theory or factual

assertion put forward in the second action is related to the

subject-matter and relevant to the issues that were litigated

and adjudicated previously, so that it could have been raised,

the judgment is conclusive on it despite the fact that it was



in order to establish that comparison employees are similarly
situated, one must show that “all of the relevant aspects of
[the employee’s] employment situation were nearly identical” to
the comparison employees. Neuren v. Adduci, Mastriani, Meeks &
Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995). The District of
Columbia Court of Appeals uses the same standard, and cites
Neuren as the controlling case on the issue. See Hollins v. Fed.
Nat. Mortgage Ass'n, 760 A.2d 563, 578 (D.C. 2000) (citing
Neuren, 43 F.3d at 1514)). Therefore, the issue of whether Mr.
Jahr was similarly situated, as it was analyzed by both the D.C.
Court of Appeals and this Court, is the same.


                                  13
not in fact expressly pleaded or otherwise urged.”) (emphasis in

original); Rodriguez v. Shulman, 844 F. Supp. 2d 1, 9-10 (D.D.C.

2012) (finding that new legal theories raised in second

proceeding were so related to previously litigated questions

that they did not constitute distinct issues).   That Mr. Jahr’s

arguments may differ somewhat from those previously presented

does not allow him a second (or perhaps more accurately, fifth)

bite at the apple.   Mr. Jahr is not only precluded from arguing

that he was treated differently from other similarly situated

employees generally, but also that he was treated differently

from other similarly situated African American employees because

of his race – an argument he was free to raise in his OEA

proceedings. See Securities Indus. Ass’n v. Board of Governors,

900 F.2d 360, 364-65 (“Whether petitioner actually argued [a

particular position in a prior proceeding] is irrelevant,

however, since preclusion because of a prior adjudication

results from resolution of a question in issue, not from the

litigation of specific arguments directed to the issue.”)

(emphasis in original); Bagenstose, 503 F. Supp. 2d at 260

(finding that a D.C. Court of Appeals affirmance of an OEA

finding that a former teacher had voluntarily retired, and was

thus never discharged, precluding the bringing of Title VII

discrimination claims that arose from the teacher’s loss of his

teaching position in federal court).

                                14
     B.   Actually Litigated

     To have preclusive effect in a subsequent proceeding, an

issue must have been “actually litigated” in the first

proceeding, Modiri, 904 A.2d at 394, meaning that it is

“properly raised, by the pleadings or otherwise, and is

submitted for determination, and is determined,” Ali Baba Co. v.

WILCO, Inc., 482 A.2d 418, 422 (D.C. 1984) (citing Restatement

(Second) of Judgments § 27(d) (1982)). Because the issue of

whether Mr. Jahr was subject to disparate treatment was

“actually litigated,” he is barred from raising it again here.

     During his OEA appeal, Mr. Jahr properly raised the issue

of disparate treatment and submitted it for determination by

presenting evidence of purported disparate treatment, which was

then considered by each reviewing court.   See Jahr I, OEA Matter

No. 1601-0180-99 at 13 n.26; Jahr III, 2009 WL 8153670 at * 4;

Jahr, 19 A.3d at 340-41.   Mr. Jahr submitted three sets of

documentation as evidence of disparate treatment in his

termination during his OEA proceeding: (i) documentation of

actions taken against two employees for inexcusable neglect of

duty; (ii) information provided to the Equal Employment

Opportunity Commission regarding three Department employees

terminated between 1995 and 1999; and (iii) a letter from

opposing counsel responding to a discovery request related to Mr.



                                15
Aronson.   Jahr I, OEA Matter No. 1601-0180-99 at 13-14.   The ALJ

found the evidence lacking because

      it was provided for a different purpose in another forum,
      the time period was too broad to be relevant in this matter,
      [and] the proposed penalty and final disposition
      information did not identify organizational units or
      supervisors. . . .

Id.   The ALJ thus concluded that Mr. Jahr had failed to show

that he had been treated differently than similarly situated

employees.   Id.   Therefore, the issue of disparate treatment was

“actually litigated,” because it was properly raised, submitted

for determination, and then determined.   See also Borger Mgmt.,

Inc. v. Sindram, 886 A.2d 52, 63 (D.C. 2005) (finding that the

issue of the legality of a landlord’s termination of a tenant’s

contract was properly raised by the tenant as a defense to the

landlord’s action for possession in an administrative action and

therefore could not be raised in a subsequent action); Pipher v.

Odell, 672 A.2d 1092, 1095 (D.C. 1996) (holding that the issue

of proper notice of sale was “actually litigated,” because it

was properly raised in earlier litigation by the filing of a

complaint alleging improper notice, and that the prior court’s

grant of summary judgment, which noted that proper notice had

been given, served as a determination of the issue); Davis, 663

A.2d at 501 (finding that the issue of blood testing was

“actually litigated” for the purposes of collateral estoppel

because it had been raised in a motion for a blood test and

                                 16
again in a Rule 60(b) motion to vacate denial of that motion);

Ali Baba Co., 482 A.2d at 425-26 (finding that multiple defenses

were “actually litigated,” because they were properly raised by

the defendant in a prior tenant action for possession in his

answer and plea of title, and that the lower court’s summary

judgment ruling addressing the defenses served as a

determination of them).

     C.   “Determined” or “Decided” by a Valid Final Judgment on
          the Merits

     “[C]ollateral estoppel treats as final only those questions

actually and necessarily decided in a prior suit.”    Brown v.

Felsen, 442 U.S. 127, 139 n.10 (1979).   Here, the issue of

disparate treatment was necessarily decided in Mr. Jahr’s OEA

proceeding and subsequent appeals.    After considering the three

sets of documentation Mr. Jahr submitted to support the argument

that he was treated disparately, the ALJ found that, “[b]ased on

the totality of the circumstances . . . [Mr. Jahr] has failed to

show he was treated unfairly.”   Jahr I, OEA Matter No. 1601-

0180-99 at 14.   Accordingly, the issue was “decided” or

“determined” in the OEA proceeding.    See Bagenstose, 503 F. Supp.

2d at 260 (holding that OEA’s finding, and the D.C. Court of

Appeals’ subsequent affirmance of that finding, that plaintiff

voluntarily retired in 1996, and was thus never discharged, was




                                 17
an issue “decided” by the OEA and entitled to preclusive effect

in the district court proceeding).

     D.   Full and Fair Opportunity

     Collateral estoppel only applies if there was a full and

fair opportunity for litigation by the parties or their privies.

Davis, 663 A.2d at 501.   In Oubre v. Dist. of Columbia, the D.C.

Court of Appeals found that the parties had “an adequate

opportunity to litigate” for purposes of issue preclusion,

because there had been an evidentiary hearing at the agency

level in which “the parties were given an opportunity to make

opening and closing statements, to call witnesses, to cross-

examine witnesses, and to introduce exhibits.”   630 A.2d 699,

703 (D.C. 1993).

     Likewise, the Court finds that Mr. Jahr had a full and fair

opportunity to litigate disparate treatment.   He was able to

introduce evidence on the issue, present his claims at a hearing

before the Administrative Law Judge, and appeal his decision to

the full board of the OEA, the D.C. Superior Court, and the

Court of Appeals.   See Youngin's Auto Body, 775 F. Supp. 2d at

8-9 (finding that the plaintiff had full and fair opportunity to

litigate, because he was granted a full evidentiary hearing

before an ALJ, representation by counsel, an opportunity to

present evidence and cross-examine witnesses, and because the

ALJ’s decision was affirmed by the D.C. Court of Appeals).

                                18
     E.   Essential to the Judgment

      “Collateral estoppel . . . precludes the relitigation of

specific facts or issues . . . when those issues are essential

to the case.”   Short v. Dist. of Columbia Dep't of Employment

Servs., 723 A.2d 845, 849 (D.C. 1998).    In assessing whether a

decision was essential to a judgment, the question is whether

the issue was “actually recognized by the parties as important

and by the trier as necessary to the first judgment.”    Synanon

Church v. United States, 820 F.2d 421, 427 (D.C. Cir. 1987)

(internal citation omitted).

     Mr. Jahr argues that the issue of disparate treatment was

“not essential to the judgment in the OEA decision.”     Reply at 3.

The Court disagrees.   The issue of disparate treatment was

essential the OEA’s holding that “managerial discretion was

legitimately invoked and properly exercised,” and that, “[the

Department’s] action was supported by the preponderance of

evidence, consistent with law and applicable regulations.”    Jahr

I, OEA Matter No. 1601-0180-99 at 14.    As explained above, the

ALJ found that Mr. Jahr was not subject to disparate treatment.

A contrary conclusion would have resulted in a conclusion that

Mr. Jahr’s termination was “not in accordance with the law or

applicable regulations.”   See, e.g. Aronson v. D.C. Fire and

Emergency Medical Services Department, OEA Matter No. 1601-0128-

99, 7-8 (January 26, 2007) (holding that Mr. Aronson’s

                                19
termination should be reduced to a sixty-day suspension, because

his penalty was different from other similarly situated

employees, and therefore inappropriate); O’Boyle v. D.C.

Metropolitan Police Department, OEA Matter 1601-0020-05R09

(January 27, 2010) (reversing an employee’s termination, because

other similarly situated employees only received the equivalent

of a twenty-day suspension).   Because the ALJ instead concluded

that Mr. Jahr’s termination was lawful, the finding regarding

disparate treatment was essential to the judgment.   See Borger

Mgmt., Inc., 886 A.2d at 63 (finding that a prior determination

that a landlord's termination of contract was legal was

essential to the judgment because it was necessary to conclude

that the termination was not retaliatory); see also Synanon

Church, 820 F.2d at 427 (finding that determination that a party

participated in willful destruction of evidence was essential to

a prior holding that the party had committed fraud on the court

because, had the party not willfully destroyed evidence, it

would not have needed to make the misrepresentations it did).

IV.   CONCLUSION

      Mr. Jahr cannot proceed on his Title VII disparate

treatment claim because he is precluded from relitigating the

issue of whether he was treated differently than similarly

situated employees in his termination.   Because Mr. Jahr is

required to show disparate treatment in order to succeed on his

                                20
Title VII claim, the determination on that issue by the OEA and

the District of Columbia courts are insuperable obstacles to the

reinstatement of his claim in this court.   See Bagenstone, 503 F.

Supp. 2d at 560 (holding that plaintiff’s Title VII claim could

not proceed because the issue of whether he was discharged had

had already been decided against him in previous actions in the

District of Columbia courts that were given preclusive effect in

his federal action).   Therefore, the Court DENIES Mr. Jahr’s

Motion to Reinstate.   An appropriate order accompanies this

memorandum opinion.

     SO ORDERED.

SIGNED:   Emmet G. Sullivan
          United States District Court Judge
          September 16, 2013




                                21
