UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SAMUEL SHANKS,

Plaintiff, v. Civil Action No. 24-0222 (CKK) INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, et al. Defendants.

MEMORANDUM OPINION (October 8, 2024)

Plaintiff Samuel Shanks, proceeding pro se, filed this lawsuit in the Superior Court of the

District of Columbia, alleging that he was subjected to employment discrimination and later

wrongfully terminated from his employment with the International Union of Bricklayers and

Allied Craftworkers (“BAC”). See Compl., ECF No. 1-1 at 14–19. Shanks raised similar claims

in a prior case filed in the D.C. Superior Court, which BAC removed to this Court and this Court

later dismissed. See Shanks v. Int’l Union of Bricklayers & Allied Craftworkers (Shanks I), No.

23-cv-311,

, at *14 (D.D.C. Sept. 22, 2023) (CKK), aff’d in part, No. 23-

7141,

(D.C. Cir. May 29, 2024). The defendants in this case—BAC and two

of its agents—removed the lawsuit from the D.C. Superior Court to this Court after Shanks

served them with a Second Amended Complaint in January 2024. See Notice of Removal, ECF

No. 1. Now pending before the Court is the Defendants’ [10] Motion to Dismiss for Failure to

State a Claim (“Motion” or “Def.’s Mot.”), in which they argue that this Court’s decision

dismissing Shanks’ prior case bars his claims in this case under the doctrine of claim preclusion.

1 Shanks did not respond to the pending Motion. Upon consideration of the briefing,1 the relevant

legal authorities, and the entire record, the Court shall GRANT the Motion to Dismiss.

I. BACKGROUND

The Court reviewed the factual basis for Shanks’s claims in its Memorandum Opinion

explaining its decision to dismiss his prior case arising from the same events. See Shanks I,

at *1–5. In summary, Shanks was employed for more than 20 years in the

accounting department at BAC, which is an international labor union. See Second Am. Compl.,

ECF No. 1-1 at 55–65, at 1. Shanks alleges that BAC and its agents unlawfully retaliated against

him after he complained about racial pay disparities and unfair treatment of Black employees at

BAC, discriminated against him on the bases of disability, race, color, and sexual orientation;

created a hostile work environment, and ultimately fired him unlawfully after he failed to comply

with a workplace policy requiring that he be vaccinated against the virus that causes COVID-19.

See

at 1–11. Shanks also alleges that BAC’s retaliatory and discriminatory actions amounted

to wrongful “concealment” and both intentional and negligent infliction of emotional distress.

See

at 8–10.

In Shanks’s prior case, this Court dismissed his retaliation claims because his claims were

either time-barred under the applicable federal and D.C. laws or the alleged actions did not rise

to the level of “materially adverse actions” that are needed to support a retaliation claim under

those laws. Shanks I,

, at *8–9. The D.C. Circuit Court of Appeals

summarily affirmed this dismissal. See No. 23-7141,

, at *1 (D.C. Cir. May

29, 2024).

1 The Court’s consideration has focused on the Plaintiff’s Second Amended Complaint, ECF No. 1-1 at 55–65; the Defendants’ Notice of Removal, ECF No. 1; the Plaintiff’s Motion to Remand, ECF No. 10; the Defendants’ Opposition to that Motion, ECF No. 12; and the Plaintiff’s Reply in support of the Motion, ECF No. 13.

2 This Court dismissed Shanks’s disability claims because he failed to allege that he has a

disability within the meaning of the relevant federal and D.C. anti-discrimination laws. Shanks I,

, at *9–10. The D.C. Circuit summarily affirmed this dismissal, too. See

, at *1.

This Court dismissed Shanks’s claim that BAC discriminated against him on the basis of

race, color, or sexual orientation when it terminated his employment because Shanks failed to

plead facts that plausibly allege that BAC’s vaccine policy was discriminatory on its face or

applied in a discriminatory manner or that he was terminated for reasons other than his violation

of that policy. Shanks I,

, at *10–11.

Finally, this Court dismissed Shanks’s claim that BAC created a hostile work

environment for non-white employees because the acts allegedly creating a hostile environment

were “not plausibly connected” and “not sufficiently pervasive or severe to plausibly satisfy the

standard” and because some of the allegations supporting the claim were untimely under the

applicable statute of limitations. Shanks I,

, at *12–14.

Shanks then filed this lawsuit in D.C. Superior Court, adding some new allegations and

naming as defendants both BAC and two of its employees: Timothy Driscoll, BAC’s president,

and Candice Dubberly, the director of its financial management unit. See Compl., ECF No. 1-1

at 14–19. The now-operative version of Shanks’s complaint in this case raises many of the same

allegations he raised in his prior case, including that between 2017 and 2021 he was

discriminated against and denied promotional opportunities after participating in collective

bargaining for a new contract, denied overtime after raising concerns about pay disparities

between different groups of employees at BAC, and eventually terminated from his position in

October 2021 for failing to comply with a workplace policy requiring that he be vaccinated

3 against the virus that causes COVID-19. See Second Am. Compl. at 1–2, 4, 7; Shanks I,

, at *5, 11. Shanks also alleges in this case, as he did in his prior case, that the

wrongful conduct at issue relates to a charge of discrimination he filed with the Equal

Employment Opportunity Commission on April 1, 2022. Second Am. Compl. at 10; Shanks I,

, at *5.

The Defendants removed this case from D.C. Superior Court to this Court after Shanks

served them with a Second Amended Complaint in January 2024. See Notice of Removal, ECF

No. 1. Defendants then filed the pending Motion to Dismiss for Failure to State a Claim, arguing

that Shanks’s claims are barred by the doctrine of claim preclusion.2 See Def.’s Mot. at 6–10;

see generally Fed. R. Civ. P. 12(b)(6). While this Motion was pending, Shanks moved to

remand this action to D.C. Superior Court. Pl.’s Mot. to Remand, ECF No. 10. This Court

denied the motion to remand, concluding that removal was proper and that this Court has

jurisdiction to adjudicate this case. Order, ECF No. 14. The Motion to Dismiss is now ripe for

decision.

II. LEGAL STANDARD

A court must grant a motion to dismiss a complaint for failure to state a claim unless the

complaint alleges facts that, if “accepted as true,” would “‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). When evaluating a complaint, courts must consider “only the facts

alleged in the complaint, any documents either attached to or incorporated in the complaint and

matters of which we may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch.,

2 Defendants refer to this doctrine by the Latin name res judicata. See Def.’s Mot. at 6. However, the Court will use the term “claim preclusion” here to avoid any potential confusion with a different aspect of res judicata that also goes by the names “issue preclusion” or “collateral estoppel,” which applies under different circumstances and has different consequences. See Nader v. Democratic Nat. Comm.,

(D.D.C. 2008) (RMU), aff’d, No. 09-7004,

(D.C. Cir. Oct. 30, 2009).

4

(D.C. Cir. 1997). Complaints prepared by pro se litigants are held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

(1972). But “a pro se complaint, no less than any other complaint, ‘must present a claim on

which the Court can grant relief,’” and if it does not do so, it will not survive a motion to

dismiss. Voinche v. Obama,

(D.D.C. 2010) (EGS) (quoting Chandler

v. Roche,

(D.D.C. 2002) (RMU)), aff’d,

(D.C. Cir.

2011).

The doctrine of claim preclusion prevents parties from relitigating the same claims in

multiple successive cases. Under that doctrine, “a subsequent lawsuit will be barred if there has

been prior litigation (1) involving the same claims or cause of action, (2) between the same

parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court

of competent jurisdiction.” Smalls v. United States,

(D.C. Cir. 2006). Claim

preclusion “may be asserted in a motion to dismiss when ‘all relevant facts are shown by the

court’s own records, of which the court takes notice.’” Nader v. Democratic Nat. Comm.,

(D.D.C. 2008) (RMU) (quoting Hemphill v. Kimberly–Clark Corp.,

(D.D.C. 2008) (RMC)), aff’d, No. 09-7004,

(D.C. Cir.

Oct. 30, 2009).

For purposes of claim preclusion, a case may involve the “same claims or cause of

action” as a prior case even if the plaintiff raises new allegations in the subsequent case. Claim

preclusion doctrine “is designed to conserve judicial resources, avoid inconsistent results,

engender respect for judgments of predictable and certain effect, and to prevent serial forum-

shopping and piecemeal litigation.” Hardison v. Alexander,

(D.C. Cir.

1981). Consistent with this purpose, claim preclusion bars not only claims that parties raised and

5 litigated in prior cases, but also “any ground for relief which [the parties] already have had an

opportunity to litigate[,] even if they chose not to exploit that opportunity” in the initial case.

(emphasis added). Therefore, claim preclusion will bar any claim arising from the same “cause

of action” as the earlier case, which consists of “all rights of the plaintiff to remedies against the

defendant with respect to all or any part of the transaction, or series of connected transactions,

out of which the action arose.” Stanton v. D.C. Ct. of Appeals,

(D.C. Cir. 1997)

(quoting Smith v. Jenkins,

(D.C. 1989)). When deciding whether claims are

barred because they arise from the same “transaction” or “series of connected transactions,”

courts in this District act “‘pragmatically,’ considering ‘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.’”

(quoting Restatement (Second) of Judgments § 24(1) (Am L. Inst. 1982)).

Agents of a principal who was a party to a prior suit are “privies” of the principal for

purposes of claim preclusion regarding claims within the scope of the agency relationship.

“Under District of Columbia law, a decision on the merits in a prior action involving the

principal or the agent precludes a subsequent action against the other party to the agency

relationship if the prior action concerned a matter within the scope of the agency.” Herrion v.

Children’s Hosp. Nat. Med. Ctr.,

(D.D.C.) (CKK), aff’d,

(D.C. Cir. 2011). “In accordance with this principle, courts have consistently held that res

judicata applies to bar later suits against the principal or the agent where a final judgment has

been rendered in a prior action involving the other party to the agency relationship and the two

actions share a common nucleus of fact.” Id. (collecting cases).

6 An order is “final” and entitled to claim-preclusive effect even while an appeal of that

order is pending. Hunt v. Liberty Lobby, Inc.,

(D.C. Cir. 1983). “The

appeal process is available to correct error; subsequent litigation is not.” Hardison,

.

III. ANALYSIS

Claim preclusion bars Shanks’s claims in this case because those claims arise from the

same “cause of action” as the claims this Court resolved in his prior case, the defendants are

either the same party (in the case of BAC) or in privity with the same party (in the case of

Driscoll and Dubberly) that Shanks sued in the prior case, and the prior case ended in a valid,

final judgment on the merits. See Smalls,

(stating requirements for claim

preclusion); see generally Shanks I,

(resolving Shanks’s prior case). Because

the Court determine from a review of the pleadings and “the court’s own records” that all the

requirements of claim preclusion are satisfied and the preclusive effect of this Court’s prior

decision bars all claims in Shanks’s Second Amended Complaint, the Court shall grant the

Defendants’ Motion to Dismiss. See Nader,

(quoting Hemphill,

).

First, Shanks’s claims in this case arise from the same “cause of action” as the claims this

Court resolved in his prior case because his claims all relate to the same “series of connected

transactions”—namely, his treatment during his employment at BAC between 2017 and 2021.

See Stanton,

. Although the complaint Shanks has filed in this case is more

detailed than his complaint in his prior case, the additional facts he alleges in support of his

claims all relate to the conditions of his employment with and eventual termination by BAC

during the same time period as the allegations he raised in the prior case. See generally Second

Am. Compl.; cf. Compl., Shanks I, No. 23-cv-311, ECF No. 1-1 at 4–5. Because Shanks could 7 have raised these claims in his prior case arising from the same events, they are part of the same

“cause of action” for purposes of claim preclusion. See Hardison,

.

Second, Driscoll and Dubberly are in privity with BAC for purposes of preclusion of

Shanks’s claims because under any plausible reading of Shank’s complaint, the actions he

alleges these defendants took were all within the scope of their employment with BAC. See

Herrion,

. Courts have long held employees to be in privity with their

employer for purposes of claim preclusion when a party has previously sued the employer for the

same alleged conduct. See, e.g., Lober v. Moore,

(D.C. Cir. 1969) (collecting

cases). Here, Shanks’s complaint refers to Driscoll and Dubberly using the titles of their roles as

BAC employees and exclusively describes actions that they allegedly took in the workplace. See

Second Am. Compl. at 1–6, 8–9. Under these circumstances, Driscoll and Dubberly are in

privity with BAC and the claim-preclusive effect of this Court’s decision in Shanks’s prior case

against BAC extends to them as individual defendants in this case.

Third, and finally, there is no dispute that this Court’s dismissal of Shanks’s prior case

for failure to state a claim was a final, valid judgment on the merits by a court of competent

jurisdiction. See Okusami v. Psychiatric Inst. of Washington, Inc.,

, 1066 (D.C.

Cir. 1992) (holding that dismissal for failure to state a claim “is a resolution on the merits and is

ordinarily prejudicial”); see also Shanks v. Int’l Union of Bricklayers & Allied Craftworkers, No.

23-7141,

, at *1 (D.C. Cir. May 29, 2024) (summarily affirming this Court’s

dismissal of retaliation and disability discrimination claims and deferring ruling on dismissal of

remaining claims resolved in same order).

Because each of these requirements is satisfied, claim preclusion bars all of Shanks’s

claims in this case. See Smalls,

.

8 IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT the Defendants’ [7] Motion to

Dismiss for Failure to State a Claim. An appropriate Order accompanies this Memorandum

Opinion.

Dated: October 8, 2024 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

9