                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10561         ELEVENTH CIRCUIT
                                   Non-Argument Calendar      AUGUST 16, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                             D.C. Docket No. 0:09-cv-60927-WPD

ODESSA HORNE,

lllllllllllllllllllll                                              Plaintiff - Appellant,

                                            versus



POSTMASTER GENERAL JOHN POTTER,
United States Postal Service Agency,

lllllllllllllllllllll                                             Defendant - Appellee.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (August 16, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:
       Odessa Horne, an African-American woman over the age of 40, appeals pro

se from the district court’s dismissal of her complaint against Postmaster General

John Potter (“the USPS”), on her claims of discrimination based on race, national

origin, and sex, and her claim of retaliation, all brought under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3(a); her claim of age

discrimination brought under the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621 et seq.; and her claim brought under the

Rehabilitation Act of 1973, 29 U.S.C. § 791. The district court dismissed Horne’s

complaint, finding that her claims were barred by the doctrine of res judicata.

      On appeal, Horne argues that the doctrine of res judicata does not bar her

from bringing her second complaint. First, she argues that her first and second

cases involved different facts and different documents because her first case

involved an administrative separation dated November 2, 2006, whereas her second

case involves a disability separation dated May 21, 2008. Second, she asserts that

she was not separated from employment or made aware of the USPS’s

Rehabilitation Act violation until she received a Notification of Personnel Action

on May 31, 2008, which occurred after she filed her first complaint. Third, she

argues that the district court’s finding that she chose to wait to file a second

complaint instead of amending her first complaint or requesting a stay of the

                                           2
proceedings is meritless. She contends that she did not have a duty to supplement

her original complaint because her cause of action under the Rehabilitation Act did

not arise until after the date that she filed her first lawsuit. She also claims that she

attempted to raise her Rehabilitation Act claim during discovery in her first case,

which is when it arose, but that the USPS objected and the district court would not

recognize such a claim. Upon review of the record and consideration of the

parties’ briefs, we affirm the district court’s decision.

                           I. STANDARDS OF REVIEW

      We review the grant of a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) de novo, “accepting the allegations in the complaint as true and

construing them in the light most favorable to the plaintiff.” Swann v. S. Health

Partners, Inc., 388 F.3d 834, 836 (11th Cir. 2004) (citation omitted). A complaint

may be dismissed for failure to state a claim “when its allegations . . . show that an

affirmative defense bars recovery on the claim.” Marsh v. Butler County, Ala., 268

F.3d 1014, 1022 (11th Cir. 2001) (en banc) (stating that res judicata is an

affirmative defense). We also review de novo a district court’s finding that a claim

is barred by res judicata. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th

Cir. 1999) (citations omitted). In reviewing this case, we note that “[p]ro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys

                                            3
and will, therefore, be liberally construed.” Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998) (per curiam) (citation omitted).

                                     II. DISCUSSION

A. Motion to Dismiss and Judicial Notice

      Before we determine whether the district court erred by dismissing Horne’s

complaint based on the doctrine of res judicata, we must address whether it could

take judicial notice of pleadings and orders in Horne’s prior case and consider the

exhibits attached to the USPS’s motion to dismiss, or whether it should have

converted the motion to dismiss into a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 12(d).1 This is an issue we address sua sponte.

See Griffith v. Wainwright, 772 F.2d 822, 824 (11th Cir. 1985) (per curiam)

(citation omitted).

      A district court may take judicial notice of certain facts without converting a

motion to dismiss into a motion for summary judgment. See Bryant v. Avado

Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999). The district court properly


       1
         If a district court considers matters outside of the pleadings when ruling on a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), then the motion to dismiss must be
treated as a motion for summary judgment under Federal Rule of Civil Procedure 56. See Brooks
v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997) (per curiam).
Where a district court converts a motion to dismiss into a motion for summary judgment, the
court must provide all parties with a reasonable opportunity to present all material that is
pertinent to the decision of whether summary judgment is appropriate. Id.

                                               4
took judicial notice of the documents in Horne’s first case, which were public

records that were “not subject to reasonable dispute” because they were “capable of

accurate and ready determination by resort to sources whose accuracy could not

reasonably be questioned.” Fed. R. Evid. 201(b); see also Universal Express, Inc.

v. U.S. SEC, 177 F. App’x. 52, 53 (11th Cir. 2006) (per curiam) (citing Stahl v. U.S.

Dep’t of Agric., 327 F.3d 697, 700 (8th Cir. 2003)); Bryant, 187 F.3d at 1278;

(R1–33 at 2 n.1).

      Moreover, the district court did not err in considering the exhibits attached to

the USPS’s motion to dismiss, including the Notification of Personnel Action and

the March 26, 2009 EEOC right to sue letter, because they were central to the

claims in Horne’s complaint and were undisputed. See Day v. Taylor, 400 F.3d

1272, 1276 (11th Cir. 2005) (citation omitted) (holding that the district “court may

consider a document attached to a motion to dismiss without converting the motion

into one for summary judgment if the attached document is (1) central to the

plaintiff’s claim and (2) undisputed”); see also R1–33 at 4 n.2. Thus, the district

court properly considered the documents in this case, and did not need to convert

the motion to dismiss into a motion for summary judgment.

B. Res Judicata

       In this Circuit, a claim is precluded by prior litigation if: “(1) there is a final

                                            5
judgment on the merits; (2) the decision was rendered by a court of competent

jurisdiction; (3) the parties, or those in privity with them, are identical in both suits;

and (4) the same cause of action is involved in both cases.” Ragsdale, 193 F.3d at

1238 (footnote omitted). Prong four is at issue in this case.

      Two cases are the same “claim” or “cause of action” “if a case arises out of

the same nucleus of operative fact, or is based upon the same factual predicate as a

former action.” Ragsdale, 193 F.3d at 1239. “Res judicata applies not only to the

precise legal theory presented in the previous litigation, but to all legal theories and

claims arising out of the same operative nucleus of fact.” Manning v. City of

Auburn, 953 F.2d 1355, 1358–59 (11th Cir. 1992) (citation and quotations

omitted). A court must therefore examine all factual issues that must be resolved in

the second suit and compare them with the issues explored in the first suit.

Ragsdale, 193 F.3d at 1239 (citation omitted). However, res judicata bars only

those claims that could have been raised in prior litigation if they arose before the

original pleading, and is not inclusive of claims that arose after the original

pleading is filed. Id. at 1238; Manning, 953 F.2d at 1360 (citation omitted).

      Here, Horne’s Rehabilitation Act claim2 arose out of the same nucleus of


       2
         The Rehabilitation Act “prohibits federal agencies from discriminating in employment
against otherwise qualified individuals with a disability.” Sutton v. Lader, 185 F.3d 1203, 1207
(11th Cir. 1999) (citing 29 U.S.C. § 791). To establish a prima facie case of discrimination under

                                               6
operative facts and was based on the same factual predicate as the claims in her

first complaint.3 In both complaints, Horne alleged that: (1) on September 9, 1996,

she suffered an on-the-job injury; (2) she was absent from work due to her injury

beginning in April 1997; (3) on April 12, 2007, the Department of Labor informed

the USPS that Horne was able to return to work; (4) on three separate occasions,

Horne requested in writing to be returned to work, but did not receive a response;

(5) the USPS’s actions were in violation of various rules and regulations; and

(6) the USPS had made accommodations for many other employees who had

sustained on-the-job injuries. (Compare R1–1 at ¶¶8–9, 11–12, 15, 23, 35, with

R1–20, exh. 3 at ¶¶8–9, 26–27, 30–33, 40–41).

      Horne argues that in her first complaint, she alleged that the USPS informed

her, in a document dated November 2, 2006, that she was being administratively

separated from employment, whereas in her second complaint, she alleged that, on

May 31, 2008, she received a Notification of Personnel Action for separation based



the Rehabilitation Act, an individual must show that she (1) has a disability; (2) “is otherwise
qualified for the position;” and (3) “was subjected to unlawful discrimination as the result of her
disability.” Id. (citations omitted).
       3
          Horne does not challenge the district court’s finding that her Title VII and ADEA claims
were barred by the doctrine of res judicata, and thus she has abandoned any challenge to the
district court’s dismissal of such claims. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (holding that we will not consider an argument that is not presented
on appeal) (citation omitted).

                                                 7
on a disability, which stated that it was effective in November 2006 and was for

“separation disability.” (Compare R1–1 at ¶16, with R1–20, exh. 3 at ¶28; see

R1–20, exh. 4 at 1).

      Although the administrative separation and the disability separation differed

in name, both were based on Horne’s on-the-job injury that allegedly caused a

disability. (Compare R1–1 at ¶16, with R1–20, exh. 3 at ¶¶13, 20, 28). Horne

alleged in her first complaint that she was subject to an administrative separation

because the USPS believed that it was unlikely that she would be able to return to

work, given that she had a “total disability.” (See R1-1 at 11, 13, 20, 28). The

Notification of Personnel Action that formed the basis for Horne’s second

complaint stated that she was being separated based on a disability. (See R1–1

at ¶16; R1–20, exh. 4 at 1). Thus, Horne’s Rehabilitation Act claim arose out of

the same nucleus of operative facts and was based on the same factual predicate as

the claims in her first complaint, namely, that the USPS separated her from

employment because she was disabled. See Ragsdale, 193 F.3d at 1239.

      Moreover, although Horne argues that she did not know she was being

separated based on her disability until she received the Notification of Personnel

Action dated May 21, 2008, the allegations contained in her first complaint show

that she was aware, or should have been aware, that the USPS was separating her

                                          8
from employment because her on-the-job injury had resulted in her being totally

disabled. (See R1–20, exh. 3 at ¶¶13, 20, 28, 29). Even if Horne was unaware of

the USPS’s classification of her as disabled, disability as defined by the USPS is

not necessarily the same classification protected by the Rehabilitation Act, under

which a claim could have been brought prior to the USPS’s disability separation

notification. Rolland v. Potter, 492 F.3d 45, 49 (1st Cir. 2007).4

      Horne’s arguments that the district court did not consider and that the USPS

prevented her from bringing a Rehabilitation Act claim are without merit. “[T]he

plaintiff is the master of the complaint” and “[t]he plaintiff selects the claims that

will be alleged in the complaint.” Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir.

2008). Because Horne did not raise a Rehabilitation Act claim in, or add such a

claim to, her first complaint, the district court was not obligated to consider such a

claim. The prior proceedings on Horne’s separation from the USPS were not

resolved until a year later, allowing her plenty of time to amend the prior pleadings


       4
          “A person may be ‘disabled’ under the Act if he is ‘regarded by’ his employer as
disabled, meaning that he (1) has an impairment that does not substantially limit a major life
activity, but is treated by an employer as though it does; (2) has an impairment that limits a major
life activity only because of others’ attitudes towards the impairment; or (3) has no impairment
whatsoever, but is treated by an employer as having a disability as recognized by the
[Rehabilitation Act].” Simpson v. Ala. Dep’t of Human Res., 311 F. App’x. 264, 268 (11th Cir.
2009) (per curiam) (citation omitted) (alteration in original). “[F]or a plaintiff to prevail under
this theory, he must show two things: (1) that the perceived disability involves a major life
activity; and (2) that the perceived disability is substantially limiting and significant.” Id.


                                                 9
or request a stay while she pursued the Rehabilitation Act administrative process.

Moreover, the USPS did not prevent Horne from bringing such a claim. The USPS

did not argue in Horne’s first case that she could not bring a Rehabilitation Act

claim or that she could not include a Rehabilitation Act claim in her complaint;

rather, the USPS solely argued that if she were to bring a Rehabilitation Act claim,

it would fail. Thus, the USPS’s argument on appeal that Horne could have brought

her Rehabilitation Act claim in her first complaint is not inconsistent with its

arguments in Horne’s first case that such a claim would fail.

      Finally, even if Horne’s Rehabilitation Act claim is not barred by the

doctrine of res judicata, she does not challenge the district court’s alternative

finding that her complaint was subject to dismissal because she failed to set forth

any plausible facts of discrimination or show that the USPS’s legitimate,

nondiscriminatory reason for separating her from employment that it gave in her

first case (failure to report for duty for a period of almost ten years) was pre-

textual. (See generally R1–33 at 10 n.3).

      Because Horne’s Rehabilitation Act claim arose out of the same nucleus of

operative facts and was based on the same factual predicate as the claims in her

first complaint, namely, that the USPS separated her from employment because she

had sustained an on-the-job injury which resulted in her being disabled, the district

                                           10
court properly found that her Rehabilitation Act claim was barred by the doctrine

of res judicata. Upon review of the record and consideration of the parties’ briefs,

we affirm.

      AFFIRMED.




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