Deborah Katz Pueschel v.  United States of America

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DEBORAH KATZ PUESCHEL,
Plaintiff-Appellant,
v. No. 03-1005 
UNITED STATES OF AMERICA,
Defendant-Appellee. 
 DEBORAH KATZ PUESCHEL,
Plaintiff-Appellant,
v.
No. 03-1006  NORMAN Y. MINETA, SECRETARY,
UNITED STATES DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellee. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge;
Leonard D. Wexler, Senior District Judge.
(CA-02-1331-A; CA-01-1471-A)
Argued: January 20, 2004
Decided: May 14, 2004
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Gregory wrote the opinion, in which Judge Wilkinson and
Judge Shedd joined.

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COUNSEL
ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEW-
MAN, P.C., Washington, D.C., for Appellant. Dennis Edward Szy-
bala, Assistant United States Attorney, Alexandria, Virginia, for
Appellees. ON BRIEF: Mary Madeline McCarthy, Office of
Regional Counsel, FEDERAL AVIATION ADMINISTRATION,
Jamaica, New York; Paul J. McNulty, United States Attorney, Alex-
andria, Virginia, for Appellees.
OPINION
GREGORY, Circuit Judge:
Deborah Katz Pueschel, a former air traffic controller ("ATC"),
appeals from two separate judgments of the United States District
Court for the Eastern District of Virginia dismissing her respective
causes of action against the Federal Aviation Administration ("FAA")
and Secretary of Transportation. Pueschel brought suit against the
FAA under the Federal Tort Claims Act ("FTCA") alleging that the
FAA negligently and intentionally caused her to suffer severe emo-
tional distress and exacerbated her preexisting work disability by sub-
jecting her to a hostile workplace, sexual harassment and retaliation
for filing complaints about her work environment (hereinafter "FTCA
suit"). Pueschel also sued the Secretary of Transportation alleging that
the FAA, an agency within the Department of Transportation, vio-
lated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., and the Rehabilitation Act, 29 U.S.C. § 791 et seq., by failing
to provide her equal access to employment opportunities and awards
and by interfering with the processing of her disability claims filed
with the Office of Workers’ Compensation Programs (hereinafter
"OWCP claim") because of her gender, work disability and in retalia-
tion for filing complaints about her work environment (hereinafter
"Title VII suit").
On October 1, 2002, Judge Hilton dismissed Pueschel’s FTCA suit
on the bases that it (1) should have been brought under Title VII,
which provides federal employees their exclusive remedies for
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employment discrimination, rather than the FTCA; (2) was barred,
even if properly brought under Title VII, by the doctrine of res judi-
cata because in a prior Title VII action brought by Pueschel the FAA
was found not to have discriminated against her on the basis of her
gender and work disability or to have retaliated against her for filing
prior complaints; and (3) failed to state a claim in light of the fact that
Virginia employers do not have a common law duty to ensure that
their employees are not subjected to sexual harassment and retalia-
tion. On November 6, 2002, Judge Wexler dismissed Pueschel’s Title
VII suit on the basis that Judge Hilton’s decision, specifically his con-
clusion that Pueschel was precluded from bringing a Title VII action
asserting discrimination and retaliation claims arising out of her FAA
employment, barred her Title VII suit under the doctrine of res judi-
cata.
On appeal, Pueschel argues that Judge Hilton erred by dismissing
her FTCA suit on res judicata grounds. She also argues that Judge
Hilton abused his discretion by failing to construe the FAA’s motion
to dismiss, to which the FAA attached a binder of exhibits, as a
motion for summary judgment. Pueschel further contends that she
was not afforded an opportunity to respond to the FAA’s motion to
dismiss her FTCA suit because the district court did not hold a hear-
ing prior to ruling on the FAA’s motion. Moreover, Pueschel argues
that Judge Hilton abused his discretion by denying her motion to stay
the proceedings and transfer her FTCA suit to Florida, where she
presently resides. Lastly, Pueschel argues that Judge Wexler erred by
concluding that her Title VII suit was barred by Judge Hilton’s dis-
missal of her FTCA suit.
With regard to Pueschel’s FTCA suit, we hold that it was properly
dismissed on preemption grounds given that Title VII establishes the
exclusive and preemptive scheme under which federal employees can
seek redress for employment discrimination. Because Pueschel failed
to respond to the FAA’s motion to dismiss, we hold that her argument
that the FAA’s motion to dismiss should have been treated as one for
summary judgment is of no moment. Irrespective of whether the
motion was treated as one for dismissal or summary judgment, Pues-
chel had eleven days under the district court’s local rules to respond
and failed to do so. We further hold that Pueschel’s argument that she
was not afforded an opportunity to respond to the FAA’s motion to
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dismiss is without merit because there is no requirement that a district
judge hold a hearing prior to ruling on such a motion. Lastly, we hold
that the denial of her motion to stay and transfer her FTCA suit did
not constitute an abuse of discretion.
With regard to Pueschel’s Title VII suit, we hold that her claim that
the FAA did not provide her equal access to employment opportuni-
ties and awards because of her gender, work disability and in retalia-
tion for filing prior complaints is precluded by the doctrine of res
judicata. We also hold, however, that her OWCP claim—which
alleges that the FAA’s interference with the processing of her work-
ers’ compensation claims has resulted in her benefits being improp-
erly taxed—is not precluded. Although Pueschel asserted in a prior
Title VII action that the FAA was interfering with the processing of
her workers’ compensation claims, the FAA in effect agreed to "split"
Pueschel’s OWCP claim from that Title VII action by informing the
court that this claim was asserted in another complaint, which has
now become Pueschel’s present Title VII suit, and thus not part of
that suit. We therefore reverse this part of the judgment dismissing
Pueschel’s Title VII suit and remand for further proceedings.
I.
In 1974, Pueschel became one of the first women to enter the ATC
program and was soon thereafter assigned to the Washington Air
Traffic Center in Leesburg, Virginia. On September 14, 1981, how-
ever, the FAA, pursuant to an Executive Order issued by President
Reagan, terminated Pueschel and approximately 1,400 other ATCs for
allegedly engaging in an illegal strike against the FAA. Prior to being
terminated, however, Pueschel commenced an action against the Sec-
retary of Transportation in the United States District Court for the
District of Columbia alleging that she had been subjected to sexual
harassment and to disparate and adverse personnel actions amounting
to gender discrimination in violation of Title VII. Because these
alleged incidents occurred in Virginia, Pueschel’s suit was transferred
to the United States District Court for the Eastern District of Virginia
where, after a bench trial, judgment was entered against her. On
appeal, we reversed in part and affirmed in part. Katz v. Dole, 709
F.2d 251, 253 (4th Cir. 1983). Specifically, we held that Pueschel had
made "out a case of sexual harassment actionable under Title VII but
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[found] no error in the district court’s handling of [her] disparate
treatment claim." Id. On remand, the district court entered an order
enjoining the FAA from engaging in conduct that caused, encouraged
or condoned the sexual harassment of Pueschel.
In addition to her Title VII action, Pueschel commenced an admin-
istrative action against the FAA challenging her dismissal for alleg-
edly participating in an illegal strike against the FAA. Katz v. FAA,
17 M.S.P.R. 303 (1983). Pueschel contended that she had been
improperly terminated because her absence from work was due to
physical and mental health reasons rather than participation in the
strike. Id. at 306. The Merit System Protection Board ("MSPB") ruled
in favor of Pueschel, noting that her history of physical and mental
health problems was sufficient evidence to rebut the FAA’s presump-
tion that she missed work to participate in the strike. Id. at 306-10.
Pursuant to the MSPB’s ruling, Pueschel was reinstated as an ATC
and awarded back pay and attorney’s fees.
After her reinstatement in January 1984, Pueschel was assigned a
regular shift during which air traffic is lower, even though ATCs are
not generally assigned regular shifts, because she suffers from
asthma, fibromyalgia, anxiety, sacroidosis and edema—conditions
aggravated by stress and fatigue. On August 18, 1992, however, Pues-
chel filed a complaint with the Equal Employment Opportunity Com-
mission ("EEOC") alleging that she was "being treated differently
because she is female, has a job related handicap, has filled [sic] EEO
Complaints, and testified before congress [sic]" and that "her career
[had] not progressed normally and her PER’s [Performance Evalua-
tion Ratings] have suffered because she has been labeled a trouble
maker . . . [and that] her peers . . . received promotions, details, and
awards and she [had] not been allowed to demonstrate her abilities to
qualify for promotions and awards." J.A. 109. Pueschel also alleged
that her workers’ compensation benefits were improperly taxed as a
result of the FAA’s interference with the processing of her claims. Id.
at 115. After the FAA investigated and denied her claims, Pueschel
requested a hearing before the EEOC, which was scheduled for May
11, 1994.
On April 5, 1994, however, Pueschel suffered a stress-related epi-
sode after a team comprised of FAA and ATC union representatives
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approached her about the possibility of altering her work schedule. As
a result of this stress-related episode, Pueschel took a sick leave from
work and has not returned to her employment with the FAA. On April
6th, one day after taking her sick leave, Pueschel requested and was
subsequently granted a postponement of her EEOC hearing on the
basis that she was too ill to participate.
Prior to being granted a postponement, however, Pueschel filed a
second EEOC complaint on April 20, 1994. In this complaint, to
which Pueschel attached a twenty-two page handwritten narrative,
Pueschel alleged that in retaliation for filing prior complaints the FAA
(1) put her under the supervision of a manager that had been previ-
ously found to have sexually harassed her; (2) destroyed her person-
nel records; (3) denied her employment opportunities, awards and
benefits made available to other employees; (4) purposely gave her
low performance evaluation ratings; (5) interfered with the processing
of her workers’ compensation claims; and (6) discriminated against
her by proposing to change her work schedule. By letter dated April
13, 1995, the FAA informed Pueschel that it was dismissing her com-
plaint for failure to show how these alleged incidents caused her to
suffer a specific injury or harm. In response, Pueschel commenced an
action in the United States District Court for the District of Columbia
asserting that the FAA dismissed her complaint without investigating
her claims as required by law. The district court agreed and ordered
the FAA to conduct a proper investigation of Pueschel’s claims. In
doing so, the district court noted that the investigation should focus
on whether the FAA, because of Pueschel’s sex and disability and in
retaliation for prior claims, had:
(1) included in her confidential medical file notes concern-
ing random drug tests;
(2) destroyed her time and attendance records contrary to
her instructions;
(3) allowed her to be supervised by someone who previ-
ously had been found to have sexually harassed her;
(4) revised her shift assignment contrary to her doctor’s
instructions; and
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(5) failed to process properly her claims for compensation
with the OWCP.
Although the district court failed to list Pueschel’s claim that she
was denied employment opportunities, awards and benefits made
available to other employees, neither party brought this to the court’s
attention. Consequently, the FAA proceeded to investigate the five
claims identified by the district court and thereafter dismissed them
because the first four were untimely raised and the fifth was outside
the EEOC’s jurisdiction. After being informed of the FAA’s decision,
Pueschel requested that the district court reconsider the matter. The
district court, however, determined that venue was only proper in the
United States District Court for the Eastern District of Virginia and
thus transferred the case. After the case was transferred, the FAA
moved for summary judgment on all five identified claims. In doing
so, however, the FAA noted that Pueschel had "filed another adminis-
trative EEO complaint specifically directed at the FAA’s handling of
her OWCP claims" and stated that the aforementioned "complaint
[was] . . . being investigated and [thus] not part of [the present] law-
suit." Id. at 221. On August 27, 1997, the district court granted the
FAA’s motion for summary judgment, finding that Pueschel’s claims
"lack[ed] merit" and that it was impossible for "any reasonable jury
[to] return a verdict in [her] favor . . . on any of the theories . . . pro-
pounded under either Title VII or the Rehabilitation Act." Id. at 328.
We affirmed the district court’s grant of summary judgment in an
unpublished opinion. Pueschel v. Slater, 173 F.3d 425 (4th Cir.
1999)(per curiam)(table)(hereinafter "1997 Title VII action").
With respect to Pueschel’s first EEOC complaint—her August 18,
1992 complaint—the FAA, in a letter dated April 18, 1995, dismissed
her complaint for failure to prosecute. Pueschel appealed this decision
to the EEOC’s Office of Federal Operations, which reversed the
FAA’s decision and remanded Pueschel’s complaint for further
administrative proceedings. After Pueschel’s complaint was
remanded, the FAA investigated the claims asserted therein and found
that Pueschel had not been subjected to discrimination because of her
gender and work disability or in retaliation for filing prior complaints.
The EEOC affirmed the FAA’s findings and thereafter denied Pues-
chel’s petition for reconsideration. Consequently, on September 24,
2001, Pueschel appealed to the United States District Court for the
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Eastern District of Virginia thereby commencing her present Title VII
suit.
In addition to her Title VII suit, Pueschel commenced her FTCA
suit in September 2001 by filing a complaint in the United States Dis-
trict Court for the District of Columbia alleging that the FAA negli-
gently and intentionally caused her to suffer severe emotional distress
and exacerbated her preexisting work disability by subjecting her to
a hostile workplace, sexual harassment and retaliation for filing com-
plaints about her work environment. The FAA moved to dismiss
Pueschel’s FTCA suit on the basis of improper venue or, alterna-
tively, requested transfer of the case to the Eastern District of Virginia
pursuant to 28 U.S.C. § 1402(b), which states that venue for FTCA
cases is proper only in "the judicial district where the plaintiff resides
or wherein the act or omission complained of occurred." The district
court held that "[t]he standard remedy for improper venue is to trans-
fer the case to the proper court rather than dismissing it," J.A. 40, and
thus transferred Pueschel’s FTCA suit to the Eastern District of Vir-
ginia.
After Pueschel’s FTCA suit was transferred, the FAA, on October
2, 2002, moved to dismiss the suit, arguing that it (1) should have
been brought under Title VII, (2) was barred by the doctrine of res
judicata and (3) failed to state a claim under Virginia common law.
Pueschel never responded to this motion. Instead, she filed, on Octo-
ber 15th, a motion to stay the proceedings and transfer the case to
Florida, where she presently resides. After Pueschel failed to respond
to the FAA’s motion to dismiss, Judge Hilton, on October 30th,
granted the FAA’s motion, holding that Pueschel’s suit should have
been brought under Title VII, rather than the FTCA, because Title VII
provides federal employees their exclusive remedy for employment
discrimination. Moreover, Judge Hilton concluded that the doctrine of
res judicata precluded Pueschel from bringing the claims asserted in
her FTCA suit under Title VII because the court in her 1997 Title VII
action granted the FAA summary judgment on her claim that she had
been subjected to "employment discrimination and retaliation during
her FAA employment up to April 1994, when she went on leave." Id.
at 6. Lastly, Judge Hilton stated that even if Pueschel had properly
brought her claims under Title VII and her claims were not barred by
res judicata, she failed to state a common law claim because Virginia
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common law does not impose a duty on employers to provide their
employees a workplace that is free from sexual harassment and retali-
ation.
On November 6th, Judge Wexler dismissed Pueschel’s Title VII
suit on res judicata grounds, reasoning that he was bound by Judge
Hilton’s conclusion that Pueschel’s 1997 Title VII action bars her
from bringing another Title VII action asserting discrimination and
retaliation claims arising out her FAA employment.
II.
A.
Pueschel argues that Judge Hilton erred by dismissing her FTCA
suit on res judicata grounds. Because we find that Pueschel’s FTCA
suit was properly dismissed on preemption grounds, we need not
address this argument.1
Title VII, inter alia, provides that "[i]t shall be an unlawful
employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex . . .
or to limit, segregate, or classify his employees . . . in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,
because of such individual’s . . . sex . . . ." 42 U.S.C. §§ 2000e-
2(a)(1)-(a)(2). Title VII also provides that "[i]t shall be an unlawful
employment practice for an employer to discriminate against any of
his employees . . . because [the employee] has opposed any practice
made an unlawful employment practice by [Title VII]." Id. § 2000e-
3(a). As originally enacted in 1964, however, Title VII did not apply
to federal employees. Instead, employment discrimination claims
brought by federal employees were governed by Executive Orders
1Although we need not reach Pueschel’s argument, there is little doubt
that her FTCA suit is barred by res judicata. The claims asserted in Pues-
chel’s FTCA suit are based on an alleged pattern of discrimination and
retaliation that the court in Pueschel’s 1997 Title VII action found the
FAA did not engage in.
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and agency regulations. In general, a federal agency accused of dis-
crimination would investigate the claim, conduct a hearing and render
a final decision, which could only be appealed to the Board of
Appeals and Review of the Civil Service Commission ("CSC").
Brown v. GSA, 425 U.S. 820, 825 (1976). Consequently, employment
discrimination claims brought by federal employees were adjudicated
by the agency accused of the wrongdoing and could not be appealed
in federal court.
Believing that such a system failed to provide federal employees
sufficient protection against employment discrimination, Congress
amended Title VII by passing the Equal Employment Opportunity
Act of 1972 ("EEOA"). See 42 U.S.C. § 2000e-16. The EEOA
expressly subjects federal agencies to Title VII’s prohibitions, dele-
gates to the EEOC2 the authority to ensure that federal agencies com-
ply with Title VII and allows aggrieved federal employees to
commence civil actions in federal court for review of their discrimina-
tion claims. Id. In providing aggrieved federal employees a private
right of action in federal court, however, the EEOA requires that fed-
eral employees exhaust their administrative remedies prior to com-
mencing such an action. Id. § 2000e-16(c); Brown v. GSA, 425 U.S.
at 832; see also Loeffler v. Frank, 486 U.S. 549, 559 (1988)("[The
EEOA] permits an aggrieved employee to file a civil action in federal
court, provided the employee has met certain requirements regarding
exhaustion of administrative remedies."). Consequently, the EEOA
"establish[es] complementary administrative and judicial enforcement
mechanisms designed to eradicate federal employment discrimina-
tion." Brown v. GSA, 425 U.S. at 831. As a result of this complemen-
tary enforcement scheme and the EEOA’s legislative history, the
Supreme Court concluded in Brown v. General Services Administra-
tion that Congress intended for Title VII to be the "exclusive, pre-
emptive administrative and judicial scheme for the redress of federal
employment discrimination," id. at 829, and thus held that Title VII
"provides the exclusive judicial remedy for claims of discrimination
in federal employment." Id. at 835.
2The EEOA originally delegated enforcement power to the CSC. This
enforcement power, however, was transferred to the EEOC by President
Carter pursuant to Reorganization Plan No. 1 of 1978, 43 Fed. Reg.
19,807, 92 Stat. 3781.
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Accordingly, we find that Pueschel’s FTCA suit, which seeks relief
for harms she allegedly suffered as a result of being subjected to dis-
crimination and retaliation during her FAA employment, was prop-
erly dismissed without prejudice on preemption grounds.
B.
Pueschel also argues that Judge Hilton abused his discretion by
failing to construe the FAA’s motion to dismiss as a motion for sum-
mary judgment. Specifically, she contends that Judge Hilton, pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure, was required
to treat the FAA’s motion to dismiss as a motion for summary judg-
ment because the FAA included a binder of exhibits with its motion.
This argument, however, is of no moment given that Pueschel failed
to respond to the FAA’s motion.3 Under the Eastern District of Vir-
ginia’s Local Rule 7(F), Pueschel had eleven days after being served
with the FAA’s motion to respond irrespective of whether the motion
was treated as one for dismissal or summary judgment. Once she
failed to do so, Judge Hilton was entitled, as authorized, to rule on the
FAA’s motion and dismiss Pueschel’s FTCA suit on the uncontro-
verted bases asserted therein.
3We note that Rule 12(b)(6) does not mandate that a district court treat
a motion to dismiss as a motion for summary judgment simply because
the moving party includes exhibits with its motion. Rule 12(b)(6) only
requires that a motion to dismiss be treated as a motion for summary
judgment when the motion to dismiss or exhibits present matters outside
the nonmoving party’s pleadings and the district court does not exclude
such matters. Fed. R. Civ. P. 12(b)(6)(stating that "[i]f, on a motion . . .
to dismiss . . . matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56 . . . ."); Harrison v.
U.S. Postal Serv., 840 F.2d 1149, 1152 n.7 (4th Cir. 1988)(noting that
district court’s reliance on exhibits to motion to dismiss did not convert
the motion into one for summary judgment because "the facts to which
the court so referred were either alleged in the amended complaint or
contained in the exhibits thereto"); Wilson-Cook Medical, Inc. v. Wilson,
942 F.2d 247, 252 (4th Cir. 1991)(holding that inclusion of supporting
memoranda and affidavits did not convert motion to dismiss into motion
for summary judgment because the district court did not consider such
material).
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At oral argument, Pueschel asserted that Judge Hilton denied her
an opportunity to respond to the FAA’s motion to dismiss by ruling
on the motion without holding a hearing. There is no requirement,
however, that a district judge hold a hearing prior to ruling on a
motion to dismiss. Greene v. WCI Holdings Corp., 136 F.3d 313, 316
(2d Cir. 1998)("Every circuit to consider the issue has determined that
the ‘hearing’ requirements of Rule 12 and Rule 56 do not mean that
an oral hearing is necessary, but only require that a party be given the
opportunity to present its views to the court."); Dougherty v. Harper’s
Magazine Co., 537 F.2d 758, 761 (3d Cir. 1976)(stating that Rule
12(b)(6) only requires that a plaintiff be given an opportunity, either
orally or in writing, to be heard); Dayco Corp. v. Goodyear Tire &
Rubber Co., 523 F.2d 389, 391 (6th Cir. 1975)(stating that the Federal
Rules of Civil Procedure do not mandate that an oral hearing be held
for a motion to dismiss). Thus, because Pueschel was given an oppor-
tunity to respond in writing to the FAA’s motion, we find this argu-
ment without merit. We also find Pueschel’s argument that Judge
Hilton abused his discretion by denying her motion to stay the pro-
ceedings and transfer her FTCA suit without merit. Once Judge Hil-
ton properly determined that Pueschel’s FTCA suit was subject to
dismissal, there no longer was a case to transfer.
III.
Lastly, Pueschel argues that Judge Wexler erred by concluding that
Judge Hilton’s decision in her FTCA suit—insofar as he determined
that her 1997 Title VII action barred her from bringing another Title
VII action asserting discrimination and retaliation claims arising out
her FAA employment—precluded her Title VII suit. Specifically,
Pueschel argues that Judge Hilton’s decision in her FTCA suit does
not preclude her Title VII suit because (1) her FTCA and Title VII
suits arise out of different causes of action and (2) the claims asserted
in her Title VII suit were not adjudicated in her 1997 Title VII action.
We address each of these arguments in turn.
A.
We review de novo a district court’s application of the principles
of res judicata. Meekins v. United Transp. Union, 946 F.2d 1054,
1057 (4th Cir. 1991). Under the doctrine of res judicata, or claim pre-
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clusion, "[a] final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have
been raised in that action." Federated Dep’t Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981); Brown v. Felsen, 442 U.S. 127, 131 (1979);
Meekins, 946 F.2d at 1057. By precluding parties in a subsequent pro-
ceeding from raising claims that were or could have been raised in a
prior proceeding, "[r]es judicata . . . encourages reliance on judicial
decisions, bars vexatious litigation, and frees the courts to resolve
other disputes." Brown, 442 U.S. at 131.
For the doctrine of res judicata to be applicable, there must be: (1)
a final judgment on the merits in a prior suit; (2) an identity of the
cause of action in both the earlier and the later suit; and (3) an identity
of parties or their privies in the two suits. Nash County Bd. of Educ.
v. Biltmore Co., 640 F.2d 484, 486 (4th Cir. 1981).
B.
Pueschel first argues that Judge Hilton’s decision in her FTCA suit
and the reasoning therein does not bar her Title VII suit because her
FTCA and Title VII suits arise out of different causes of action. Pues-
chel bases this argument on the fact that all the claims asserted in her
FTCA and Title VII suits are not identical. Appellant’s Brief at 21 ("It
is obvious that the Title VII case does not assert sexual harassment,
and that the FTCA case states no claim regarding promotions and
awards. There is thus no basis to the district court’s conclusion that
the Title VII case before him and the FTCA case dismissed by Judge
Hilton were ‘the same cause of action.’"). The determination of
whether two suits arise out of the same cause of action, however, does
not turn on whether the claims asserted are identical. Rather, it turns
on whether the suits and the claims asserted therein "arise out of the
same transaction or series of transactions or the same core of opera-
tive facts." In re Varat Enters., Inc., 81 F.3d 1310, 1316 (4th Cir.
1996)(internal citations omitted). Were we to focus on the claims
asserted in each suit, we would allow parties to frustrate the goals of
res judicata through artful pleading and claim splitting given that "[a]
single cause of action can manifest itself into an outpouring of differ-
ent claims, based variously on federal statutes, state statutes, and the
common law." Kale v. Combined Ins. Co. of Am., 924 F.2d 1161,
1166 (1st Cir. 1991).
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Here, there is no question that Pueschel’s FTCA and Title VII suits
arise out of "the same transaction or series of transactions or the same
core of operative facts." In re Varat Enters., Inc., 81 F.3d at 1316.
Both suits assert claims that are based on an alleged pattern of FAA
conduct that supposedly took place between January 1984, when
Pueschel was reinstated, and April 5, 1994, when Pueschel took a sick
leave from which she never returned. J.A. 447, 449 (FTCA complaint:
"Plaintiff continued to suffer a hostile work environment, verbal slurs
and retaliation . . . throughout [her] employment"; "It is outrageous
that the FAA has allowed the hostile work environment and retalia-
tion to continue for so many years. The failure by the FAA and its
employees to stop the harassment, insults and retaliation in the face
of the continuous degrading treatment over a period of years consti-
tuted intentional infliction of emotional distress."); id. at 22 (Title VII
complaint: "[P]laintiff allege[s] that from the time she returned to [her
employment] in 1984 after prevailing on a claim of sexual harassment
she had filed against defendant, she ha[s] never been promoted,
detailed to a supervisor position, or given an award of any kind. . . .
In addition, [Plaintiff] allege[s] that defendant ha[s] illegally refused
to process plaintiff’s worker compensation claims and ha[s] actively
interfered with plaintiff’s ability to have her worker compensation
claims processed by the Department of Labor.").
C.
Pueschel next argues that her Title VII suit is not barred by Judge
Hilton’s determination as to the scope of the holding in her 1997 Title
VII action because the claims asserted in her Title VII suit were not
adjudicated in her 1997 Title VII action. Pueschel, however, fails to
recognize that the doctrine of res judicata not only bars claims that
were actually litigated in a prior proceeding, but also claims that
could have been litigated. Federated Dep’t Stores, Inc., 452 U.S. at
398 ("A final judgment on the merits of an action precludes the par-
ties or their privies from relitigating issues that were or could have
been raised in that action." (emphasis added)); Meekins, 946 F.2d at
1057 (stating that res judicata "‘prevents litigation of all grounds for,
or defenses to, recovery that were previously available to the parties,
regardless of whether they were asserted or determined in the prior
proceeding’" (quoting Peugeot Motors of Am. v. E. Auto Distribs.,
Inc., 892 F.2d 355, 359 (4th Cir. 1989)(emphasis added)).
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Accordingly, we find that Pueschel’s claim that she was denied
equal access to employment opportunities and awards because of her
gender, work disability and in retaliation for filing prior complaints
is barred by her 1997 Title VII action. Although not actually litigated
in Pueschel’s 1997 Title VII action, this claim clearly could have been
litigated. Pueschel raised it in both her administrative and judicial
complaints but failed to request that it be included in the list of claims
identified by the District of Columbia, prior to its transferring the case
to the Eastern District of Virginia, as it attempted to discern the
claims asserted by Pueschel in her administrative complaint, to which
Pueschel attached a twenty-two page handwritten narrative, and judi-
cial complaint. While it would have been prudent for the FAA to
ensure that the district court included this claim so as to preclude
Pueschel from reasserting it in a subsequent suit, as she now seeks to
do, it was Pueschel’s duty, as the master of her complaint, to make
sure that the district court identified all of her claims. Having failed
to do so, Pueschel cannot now seek to litigate this issue on the basis
that it was not actually litigated in her 1997 Title VII action.
With regard to Pueschel’s OWCP claim, we find that it is not
barred by her 1997 Title VII action. Given that "a principal purpose
of the general rule of res judicata is to protect the defendant from the
burden of relitigating the same claim in different suits, consent, ‘in
express words or otherwise,’ to the splitting of the claim prevents the
defendant from invoking claim preclusion." Keith v. Aldridge, 900
F.2d 736, 740 (4th Cir. 1990)(quoting Restatement (Second) of Judg-
ments § 26(1)(a) cmt. a). After reviewing the FAA’s motion for sum-
mary judgment in Pueschel’s 1997 Title VII action, we believe that
the FAA in effect agreed to Pueschel’s splitting of her single claim
that the FAA was interfering with the processing of her workers’
compensation claims. Even though Pueschel asserted in her 1997
Title VII action that the FAA was interfering with the processing of
her workers’ compensation claims, the FAA’s motion for summary
judgment expressly stated that Pueschel had "filed another adminis-
trative EEO complaint specifically directed at the FAA’s handling of
her OWCP claims," which has now become Pueschel’s present Title
VII suit, and that such "complaint [was] . . . being investigated and
[thus] not part of [the present] lawsuit." J.A. 221. By making this rep-
resentation, the FAA in effect consented to the splitting of Pueschel’s
OWCP claim from her 1997 Title VII action.
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IV.
Based on the foregoing, we affirm in part, reverse in part and
remand for further proceedings.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
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