     Case: 13-10501      Document: 00512487167         Page: 1    Date Filed: 01/02/2014




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                          Fifth Circuit

                                                                              FILED
                                                                          January 2, 2014
                                    No. 13-10501
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk


REGINA K. MURRY,

                                                 Plaintiff-Appellant

v.

GENERAL SERVICES ADMINISTRATION; DANIEL M. TANGHERLINI,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-744


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       This Title VII action arises out of Defendant General Services
Administration’s (“GSA”) alleged misconduct between 2000 and 2003; the
period during which pro se Plaintiff Regina Murry (“Murry”) was employed by
the GSA. The district court dismissed Murry’s claim as barred by the doctrine
of res judicata. We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-10501     Document: 00512487167     Page: 2   Date Filed: 01/02/2014


                                  No. 13-10501

                          STATEMENT OF FACTS
        Regina Murry was employed by the GSA from 2000 through 2003.
During her time at the GSA, Murry filed a “myriad” of complaints with the
Equal Employee Opportunity Commission (“EEOC”), which were consolidated
by the Administrative Law Judge (“ALJ”). On April 26, 2007, Murry requested
separating her “most significant” claims (Murry I) from her remaining claims
(Murry II), averring that handling Murry I first “would eliminate confusions
currently present in [her] claims.” R. 141. She followed-up on that request on
June 6, 2007, again requesting separation of her claims, as she was
“experiencing difficulty in managing her claims, ‘especially multi-tasking
functions.’” The EEOC granted her request, dismissing Murry II without
prejudice on August 22, 2007.
        On August 29, 2008, the ALJ issued its decision in Murry I, determining
that the GSA had neither discriminated against Murry on the basis of race or
disability nor retaliated against her for participating in prior EEOC actions.
Murry appealed the ALJ’s decision to the Office of Federal Operations (“OFO”),
which affirmed the ALJ’s ruling and issued the right-to-sue notice for Murry I
on March 9, 2010. R. 137.
        Murry I was filed in the Northern District of Texas on June 7, 2010,
alleging (1) Disability Discrimination – Failure to Accommodate, (2) Unlawful
Retaliation through changing her work schedule, and (3) Unlawful
Harassment: Hostile Work Environment. In her first amended complaint, filed
on October 13, 2011, Murry averred that the discriminatory activity began in
March 2000 and continued through her termination on July 28, 2003. The
district court granted summary judgment in favor of the GSA on February 24,
2012.




                                       2
    Case: 13-10501     Document: 00512487167     Page: 3   Date Filed: 01/02/2014


                                  No. 13-10501

      On July 2, 2009—prior to issuance of her right to sue notice in Murry I—
Murry requested that the ALJ adjudicate her separated (Murry II) claims
without a hearing. The GSA denied the Murry II claims on September 10,
2009, and informed Murry that she could either (1) appeal to the district court
within 90 days or (2) appeal to the EEOC within 30 days. If she appealed to
the EEOC, she retained the right to appeal to the district court within either
(1) 90 days of the EEOC’s decision on appeal or (2) 180 days after the filing of
the EEOC appeal if the EEOC had not made a decision at that point. So while
the EEOC did not issue its final decision until July 20, 2012, Murry regained
her right to sue in Murry II on April 8, 2010—two months before she filed
Murry I.
      Rather than bring Murry II as part of Murry I—or as part of her October
13, 2011 amended complaint in Murry I—Murry waited to receive her right-to-
sue notice and brought Murry II in the Northern District of Texas on October
19, 2012; nearly eight months after the district court dismissed Murry I. Murry
II alleges Disability Discrimination for failure to accommodate her disabilities,
and implies retaliation for filing her previous EEOC complaints. As in Murry
I, the allegedly unlawful conduct occurred prior to her termination in 2003.
The GSA moved to dismiss Murry II as barred by res judicata. The district
court granted the GSA’s motion, and Murry appeals.


                          STANDARD OF REVIEW
      “In our review of the district court’s res judicata ruling, we must
determine (1) whether the barred claims were part of the same cause of action
as the claims in” Murry I, and “(2) whether the barred claims could have been
advanced in” Murry I. Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 313
(5th Cir. 2004). “The res judicata effect of a prior judgment is a question of law



                                        3
    Case: 13-10501     Document: 00512487167     Page: 4   Date Filed: 01/02/2014


                                  No. 13-10501

that we review de novo.” Id. Dismissal under Rule 12(b)(6) on res judicata
grounds is appropriate when the elements of res judicata are apparent on the
face of the pleadings. See Kan. Reinsurance Co. v. Congressional Mortg. Corp.
of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994).
      Although Murry challenges whether the elements of res judicata have
been satisfied, her primary argument appears to be that no one told her that
her Murry II claims should have been brought alongside Murry I. See Pl.’s Br.
4. While we construe pro se complaints liberally—and are not unsympathetic
to the difficulty pro se plaintiffs encounter in navigating the Federal Rules of
Civil Procedure—pro se plaintiffs are not exempt from the rules of res judicata.
See Birl v. Estelle, 660 F.2d 592, 593 (“The right of self-representation does not
exempt a party from compliance with relevant rules of procedural and
substantive law.     One who proceeds pro se with full knowledge and
understanding of the risks involved acquires no greater rights than a litigant
represented by a lawyer, unless a liberal construction of properly filed
pleadings be considered an enhanced right.”) (internal citations omitted).


                                 DISCUSSION
      The district court concluded that Murry II was barred by the doctrine of
res judicata, which bars the litigation of claims that were previously litigated
or could have been raised in an earlier suit. Nilsen v. City of Moss Point, 701
F.2d 556, 560 (5th Cir. 1983) (“it is black-letter law that res judicata, by
contrast to narrower doctrines of issue preclusion, bars all claims that were or
could have been advanced in support of the cause of action on the occasion of
its former adjudication . . . not merely those that were adjudicated.”). The four
elements of res judicata are whether: (1) the parties are identical or in privity;
(2) the judgment in the prior action was rendered by a court of competent



                                        4
    Case: 13-10501    Document: 00512487167     Page: 5   Date Filed: 01/02/2014


                                 No. 13-10501

jurisdiction; (3) the prior action was concluded by a final judgment on the
merits; and (4) the same claim or cause of action was involved in both actions.
Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005).
      Murry’s argument on the first requirement—identical parties—is
without merit. Although she alleges that different managers were responsible
for the discriminatory behavior, the only parties to Murry I and Murry II were
the GSA and Daniel Tagherlini (acting Administrator of the GSA), not the
individual managers in their individual capacity. Because she alleges that the
GSA discriminated against her, and because the GSA was the defendant in
Murry I, the first requirement of res judicata is satisfied. Murry does not
contest the second and third requirements.
      Murry also challenges the fourth requirement, arguing that Murry I and
Murry II do not arise out of the same claim or cause of action. This court
applies the “transactional test” to determine if later-brought claims are
precluded by an earlier-brought lawsuit. See Davis, 383 F.3d at 313. “The
critical issue under the transactional test is whether the two actions are based
on the ‘same nucleus of operative facts.’”      Id.   “What grouping of facts
constitutes a ‘transaction’ or a ‘series of transactions’ must ‘be determined
pragmatically, giving weight to such considerations as whether the facts 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 Restatement
(Second) of Judgments § 24(2) (1982)).
      Murry’s claims of discrimination arise from the “same continuing course
of allegedly discriminatory conduct” by the GSA, beginning in 2000 and
culminating in her termination in 2003. See id. at 314. The allegedly unlawful
conduct was motivated by the same alleged racial and disability animus in both



                                         5
      Case: 13-10501      Document: 00512487167          Page: 6     Date Filed: 01/02/2014


                                       No. 13-10501

cases, and the alleged retaliation was in response to the same EEOC filings.
Murry argues that Murry II cannot be considered part of Murry I because the
specific alleged conduct in Murry I took place before the conduct alleged in
Murry II. While this court has held that “subsequent wrongs by a defendant
constitute new causes of action,” the principle of “subsequent wrongs” only
applies if those wrongs occurred (1) “after the plaintiffs had filed their prior
lawsuit” or (2) “after the district court had entered judgment in the prior
lawsuit.” Id. All the alleged wrongs suffered by Murry occurred between 2000
and 2003; Murry I was not filed until 2008. Because all of the allegedly
unlawful acts occurred before the filing of Murry I, the principle that
“subsequent wrongs constitute separate causes of action” does not aid Murry’s
argument.
       Finally, Murry could have brought Murry II alongside Murry I. As this
court stated in Davis, “a plaintiff who brings a Title VII action and files
administrative claims with the EEOC must still comply with the general rules
governing federal litigation respecting other potentially viable claims.” Id. at
316 (internal quotation marks omitted). “Because the barred claims arose from
the same nucleus of operative fact as the claims in [Murry I] and they predate
that action,” Murry was on notice to include those claims in Murry I. The lack
of a right-to-sue letter for Murry II does not affect the rules of res judicata. 1
Id.


       1 See also, e.g., Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992); Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 714-15 (9th Cir. 2001) (Title VII claims were not
exempt from claim preclusion where plaintiffs failed to seek a stay of proceedings or to amend
their complaint); Herrmann v. Cencom Cable Assocs., Inc., 999 F.2d 223, 225 (7th Cir. 1993)
(“Parties to Title VII actions enjoy no immunity from res judicata.”); cf. Boateng v.
InterAmerican Univ., Inc., 210 F.3d 56, 63 (1st Cir. 2000) (Title VII claim subject to res
judicata where plaintiff received right-to-sue letter during pendency of prior action); Jang v.
United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000) (ADA claim was not exempt from
res judicata where plaintiff failed to obtain right-to-sue letter during pendency of previous
litigation); Churchill v. Star Enters., 183 F.3d 184, 193-94 (3d Cir. 1999) (same); Rivers v.


                                               6
     Case: 13-10501       Document: 00512487167         Page: 7     Date Filed: 01/02/2014


                                       No. 13-10501

       To avoid losing her right to bring her Murry II claims in federal court,
Murry could have: (1) asked for a stay in Murry I to await the conclusion of
Murry II; (2) brought Murry II in the district court, rather than pursue an
EEOC appeal; or (3) brought Murry II in the district court once the 180-day
period following filing of the EEOC appeal expired. Indeed, these claims were
originally consolidated into a single case by the ALJ, who only separated them
to accommodate Murry’s request. While that may be an appropriate process
in the EEOC, res judicata exists precisely to avoid this kind of serial, successive
litigation of claims arising out of the same series of transactions. Nilsen, 701
F.2d at 563 (“The doctrine of res judicata contemplates, at a minimum, that
courts be not required to adjudicate, nor defendants to address, successive
actions arising out of the same transaction, asserting breach of the same
duty.”). As in Davis, Murry II is “barred by res judicata even though she had
not received a right-to-sue letter at the time she filed her lawsuit.” Davis, 383
F.3d at 315.


                                     CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




Barberton Bd. of Educ., 143 F.3d 1029, 1032-33 (6th Cir. 1998) (plaintiff's claims were barred
by res judicata where she could have obtained a right-to-sue letter and perfected her claim
during the two-year pendency of prior action).


                                              7
