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No. 05-1233

In the Supreme Court of the United States

PAMELA J. JORDAN, PETITIONER

v.

MICHAEL CHERTOFF, SECRETARY
OF HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
MARLEIGH D. DOVER
MARK S. DAVIES
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner's claims are foreclosed by the doctrine of res judicata or because they were not raised below.

2. Whether the court of appeals erred in holding that the complained of events did not qualify as adverse employment actions sufficient to establish actionable retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

In the Supreme Court of the United States

No. 05-1233

PAMELA J. JORDAN, PETITIONER

v.

MICHAEL CHERTOFF, SECRETARY
OF HOMELAND SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-10) is unreported. The opinion of the district court (Pet. App. 14-23) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 11) was entered on December 23, 2005. The petition for a writ of certiorari was filed on March 23, 2006. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1988, petitioner Pamela A. Jordan, an African- American woman, began working for the United States Customs Service. Pet. App. 2. For several years, peti tioner worked within the Accounts Payable Group, including the Internal Recurring Obligation (IRO) Unit. Id. at 2-3. In 1995, Customs granted petitioner's re quest for a detail to the Forfeiture Fund Team (FFT). Ibid. In late 1995, petitioner requested that Customs reassign her permanently to the FFT. Ibid. Although Customs did not grant that request, Customs extended petitioner's detail. Ibid. Because the IRO unit had a substantial backlog and was short on staff, the Accounts Payable leader requested petitioner's return to the IRO unit. Ibid.

Before the end of petitioner's second detail, she made a request for overtime. Pet. App. 3. Petitioner's super visor denied that request. Id. at 3-4. At the end of her second detail, petitioner returned to her previous posi tion at the IRO unit. Id. at 4. In 1998, Customs reas signed petitioner to the FFT, where she worked until she resigned in 2001. Ibid.

2. Petitioner has filed five lawsuits against Customs alleging discrimination on the basis of race and retalia tion. In Jordan I, the district court found no evidence of discrimination in failing to promote petitioner to an accountant position, and the court of appeals affirmed. Jordan v. Summers, 205 F.3d 337 (7th Cir. 2000). In Jordan II, the district court determined that petitioner had failed to file a timely administrative complaint. Pet. App. 15 n.5. In Jordan III, the district court ruled against petitioner on grounds of res judicata, and the court of appeals affirmed. Jordan v. O'Neill, 28 Fed. Appx. 548 (7th Cir. 2002). In Jordan IV, the district court rejected petitioner's challenges to Customs' failure to reassign her to FFT in September 1996, and its fail ure to promote her in November 1996, and the court of appeals affirmed. Jordan v. Chertoff, 136 Fed. Appx. 913 (7th Cir. 2005).

In Jordan V, at issue here, the district court granted summary judgment to the government based on princi ples of res judicata. Pet. App. 17-23. The court deter mined that only three of petitioner's claims were not identical to those resolved in petitioner's other cases, each of which challenged actions that took place on No vember 13, 1995: (1) a claim challenging Customs' fail ure to extend her detail; (2) a claim challenging Cus toms' failure to permanently reassign her to the FFT and (3) a claim challenging Customs' failure to approve petitioner's request for overtime work. Id. at 20. The court ruled that each of those claims was barred, how ever, because petitioner could have raised them in Jor dan IV, but failed to do so. The court explained that res judicata not only bars relitigation of claims that were previously resolved, but it also precludes litigation on related matters that arise from the same transaction or occurrence. Id. at 21. Finding that petitioner's Novem ber 13, 1995 claims all arose from the same transactions or occurrences that were involved in Jordan IV, the court concluded that the judgment in Jordan IV pre cluded petitioner from litigating her November 13, 1995 claims. Id. at 21-22.

3. The court of appeals affirmed. Pet. App. 1-10. The court did not address petitioner's challenge to the district court's res judicata ruling. Id. at 5. Instead, the court of appeals affirmed the district court's judgment on the ground that each of petitioner's November 13, 1995 claims failed on the merits. Ibid.

The court held that, in order for petitioner to estab lish actionable discrimination or retaliation, she was required to demonstrate that she suffered an adverse employment action. Pet. App. 6. The court concluded that petitioner had failed to make that showing. Id. at 7. The court ruled that Customs' failure to extend peti tioner's detail or permanently reassign her to FFT were not adverse employment actions because petitioner's salary, grade, title, and position description remained the same, and because an employee's subjective prefer ence for one job over another is not sufficient to demon strate an adverse employment action. Ibid. The court ruled that Customs' failure to approve petitioner's re quest for overtime was not an adverse action because such overtime was "discretionary" and the denial of a discretionary benefit is not an adverse action. Id. at 8.

DISCUSSION

1. Petitioner contends (Pet. 8-11) that the refusal to extend her training detail, her reassignment, her loss of overtime, and her placement in low-level clerk duties constituted adverse actions for purposes of Title VII's prohibitions against discrimination and retaliation. That contention does not warrant review. Regardless of whether the actions identified by petitioner constituted adverse actions, petitioner's first three claims are pre cluded by principles of res judicata, and petitioner for feited her fourth claim by failing to raise it administra tively or in the lower courts.

As the district court correctly held, petitioner's chal lenges to the failure to extend her detail, her reassign ment, and the failure to approve her overtime request are barred by res judicata. Under the doctrine of res judicata, a final judgment on the merits of an action not only precludes a party from relitigating issues that were resolved in that action; it also precludes a party from litigating issues that "could have been raised in that ac tion." See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). As the district court concluded, that aspect of res judicata applies here. Although peti tioner did not challenge the failure to extend her detail, her reassignment, or the failure to approve her request for overtime in Jordan IV, each of those claims could have been made in that action. As the district court ex plained, each of petitioner's three claims challenged an action that Customs took in November 1995, and the district court in Jordan IV expressly considered Cus toms' treatment of petitioner in November 1995. Pet. App. 21-22. Because petitioner could have raised her challenges to the failure to extend her detail, her reas signment, and the failure to approve her request for overtime in Jordan IV, the final judgment in Jordan IV precludes petitioner from litigating those claims in this action.

Petitioner argues (Pet. 7) that because her complaint in Jordan IV was filed after her complaint in this action, the Jordan IV judgment has no res judicata conse quences here. That contention is without merit. When two actions arise from the same transaction or occur rence, the action that results in a judgment first has a res judicata effect on the other action, regardless of which action was filed first. See Restatement (Second) of Judgments § 14 (1982); id. at cmt. a. Petitioner simi larly errs in contending (Pet. 7) that the district court's refusal to consolidate this case with Jordan IV deprives the judgment in Jordan IV of res judicata effect. The court's refusal to consolidate the actions did not in any way preclude petitioner from raising her detail, reas signment, and overtime claims in Jordan IV. The court's refusal to consolidate the actions therefore did not deprive the judgment in Jordan IV of its ordinary res judicata effect. See Diversified Foods, Inc. v. First Nat'l Bank of Boston, 985 F.2d 27, 31 (1st Cir.), cert. denied, 509 U.S. 907 (1993). Thus, petitioner's detail, reassignment, and overtime claims are barred by res judicata.

Petitioner's challenge to her placement in clerk du ties in 1998 is precluded for a different reason. Peti tioner forfeited that claim by failing to raise it either administratively or in the lower courts. Because peti tioner failed to press her claim administratively or be fore the lower courts, that claim is not properly pre sented here.

2. If petitioner's claims were not foreclosed by res judicata and forfeiture principles, it would be appropri ate to hold the petition in this case pending the Court's decision in Burlington Northern & Santa Fe Railway v. White, No. 05-259 (argued Apr. 17, 2006). As noted above, petitioner contends that review is warranted in this case to consider the showing that an employee must make to demonstrate an adverse employment action for purposes of a Title VII retaliation claim. In Burlington, the Court granted a petition for a writ of certiorari to resolve that issue.

This case involves the application of Title VII's retal iation provision to a federal employer, rather than a pri vate employer, as in Burlington. Because of differences in the language between Title VII's federal employer and private employer provisions, compare 42 U.S.C. 2000e-16(a) (federal employer), with 42 U.S.C. 2000e- 3(a) (private employer), the decision in Burlington would not necessarily answer the question whether the actions at issue here are adverse for purposes of the federal employer provision. See U.S. Amicus Br. at 19 n.5, Burlington Northern, supra (No. 05-259). Nonethe less, because of the overlap in the basic issue presented, if petitioner's claims were not foreclosed by res judicata and forfeiture principles, it would be appropriate to hold the present petition pending the Court's decision in Burlington.

CONCLUSION

The petition for a writ of certiorari should be denied. Respectfully submitted.

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PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
MARLEIGH D. DOVER
MARK S. DAVIES
Attorneys

 

 

MAY 2006