Washington v. AT&T Southeast

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/20/2015. (PSM)

FILED
2015 Jan-20 PM 03:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEROY ANDREW
WASHINGTON,
Plaintiff,
v.
AT&T SOUTHEAST,
Defendant.

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Case No. 2:14-cv-02109-AKK

MEMORANDUM OPINION
Leroy Andrew Washington, an African-American male, brings this action
pro se1 against AT&T Southeast (AT&T), alleging unlawful discrimination
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(Title VII). Doc. 1. AT&T moves for the undersigned to consolidate this matter
with Washington’s other lawsuit currently pending before this court, 2:14-cv1975-TMP, dismiss Washington’s claims in their entirety, and impose sanctions

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“‘Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.’” Osahar v. Postmaster Gen. of U.S. Postal
Serv., 263 F. App’x. 753, 761 (11th Cir. 2008) (quoting Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998)). Nonetheless, “a pro se litigant ‘is subject to the relevant law and
rules of court including the Federal Rules of Civil Procedure.’” Blakely v. Johnston, Civil Action
No. 10-0026-CG-N, 2010 WL 4269186, at *2 (S.D. Ala. Sept. 21, 2010) (quoting Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989)).
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on Washington. Doc. 7. The motion is fully briefed and ripe for review. Docs. 11,
12. For the reasons stated more fully below, AT&T’s motion to consolidate this
case with 14-cv-1975-TMP and to dismiss the consolidated case is due to be
granted. AT&T’s motion for sanctions is due to be denied.
A. Common questions of law and facts are grounds for consolidation.
Turning first to the motion to consolidate this matter with 14-cv-1975-TMP,
the undersigned notes that Washington filed an identical complaint in that matter.
See 14-cv-1975-TMP doc. 1. In both cases, Washington is alleging that AT&T has
retaliated against him for filing prior lawsuits and EEOC charges by refusing to
hire him. Because courts have broad discretion to consolidate actions that “involve
a common question of law or fact,” Fed. R. Civ. P. 42(a), and the pending lawsuits
concern Washington’s allegations that AT&T failed to rehire him for
discriminatory reasons, both cases clearly involve common questions of law and
fact. Therefore, AT&T’s motion to consolidate is due to be granted.
B. Res judicata warrants the dismissal of these consolidated cases.
Next, AT&T moves to dismiss these consolidated cases on res judicata
grounds. In a nutshell, in these consolidated cases, Washington claims his former
employer, BellSouth Company, which subsequently merged with AT&T,
pretextually discharged him, claiming his performance was deficient, then refused
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to rehire him because of his race, gender, and in retaliation for filings several
EEOC charges and lawsuits in connection with his termination and BellSouth’s
(and subsequently AT&T’s) refusal to rehire him. 14-cv-2109-AKK, doc 1. at 4;
14-cv-1975, doc. 1 at 2; doc. 1-1 at 1. This is not the first time Washington has
presented similar allegations to this court.2 See Washington v. AT&T Inc., Case
No. 2:12-cv-3808-MHH, docs. 17, 18 (memorandum opinion and order dismissing
case as barred by the statute of limitations and res judicata) (Washington III);
Washington v. BellSouth Corp. d/b/a AT&T Inc., Case No. 2:10-cv-03306-IPJ,
doc. 2 (memorandum opinion and order dismissing complaint for failing to state a
claim and as barred by res judicata) (Washington II); Washington v. BellSouth
Telecomms., et al., Case No. 2:06-cv-01320-IPJ, docs. 64, 65 (memorandum
opinion and order granting defendant’s motion for summary judgment because
Washington’s claims were alternatively time barred or unsupported by evidence),
aff’d 285 F. App’x 597 (11th Cir. 2008) (Washington I). In light of the prior

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In considering documents from these previous cases, and in particular from Washington
I, the undersigned notes that “[a] district court may take judicial notice of certain facts without
converting a motion to dismiss into a motion for summary judgment.” Horne v. Potter, 392 F.
App’x 800, 802 (11th Cir. 2010) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th
Cir. 1999)). In particular, a court may take judicial notice of documents from previous litigation
“which are public records that [are] ‘not subject to reasonable dispute’ because they [are]
‘capable of accurate and ready determination by resort to sources whose accuracy could not
reasonably be questioned.’” Id. (quoting Fed. R. Evid. 201(b)) (citing Universal Express, Inc. v.
U.S. SEC, 177 F. App’x 52, 53 (11th Cir. 2006)).
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filings, AT&T maintains that these two recent cases are barred by the doctrine of
res judicata, a legal doctrine that “‘bars the filing of claims which were raised or
could have been raised in an earlier proceeding.’” Schafler v. Indian Spring Maint.
Ass’n, 139 F. App’x 147, 149 (11th Cir. 2005) (quoting Ragsdale v. Rubbermaid,
Inc., 193 F.3d 1235, 1238 (11th Cir. 1999)). For the reasons stated below, the
court agrees with AT&T.
“In this Circuit, a claim is precluded by prior litigation if: ‘(1) there is a final
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.’” Horne v. Potter,
392 F. App’x 800, 802 (11th Cir. 2010) (quoting Ragsdale, 193 F.3d at 1238). An
application of these elements to the consolidated cases shows that, as this court
found in Washington II, see 2:10-cv-03306-IPJ, doc. 2 at 2, and Washington III,
see 2:12-cv-3808-MHH, doc. 17 at 1, Washington I precludes these consolidated
cases. The first three elements of res judicata are clearly present: the Washington I
district court’s decision was a final decision on the merits because it disposed of
the case entirely; the Washington I court had jurisdiction pursuant to 42 U.S.C. §
2000e, et seq. because Washington raised claims pursuant to Title VII, 2:06-cv01320-IPJ, doc. 64 at 2; and, by Washington’s own admission, AT&T is the
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successor-in-interest to his former employer, BellSouth, 2:14-cv-2109, doc. 1 at 2
(“BellSouth Corp. merged with AT&T Inc. After the merger they are doing
business as AT&T Southeast and AT&T Inc.”). As for the fourth element, “[t]wo
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.’” Horne, 392 F. App’x at 802 (quoting Ragsdale, 193 F.3d at 1239). This
is precisely the case here because in Washington I, as in these consolidated cases,
Washington contended, among other things, that the defendant discriminated and
retaliated against him by failing to rehire him. 2:06-cv-01320-IPJ, doc. 64 at 8.
Although Washington’s complaints in these consolidated cases can be construed
to contend that he is the subject of ongoing retaliation, see 2:14-cv-2109-AKK,
doc. 1 at 4 (“Since filing several charge[s] of employment discrimination, f[i]ling
suit in court, appealing and winning my unemployment denial, I continue to be the
subject of retaliation.”); 2:14-cv-1975-TMP, doc. 1-1 at 1 (“I have been informed
that I will never be employed again by [AT&T]. It is my belief that this has been
indicated because I previously filed a grievance against the company on the basis
of racial discrimination, which resulted in my termination.”), the Washington I
opinion forestalls this argument by firmly connecting BellSouth’s decision not to
rehire Washington to his termination. As the Washington I opinion explains, after
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Washington’s discharge, his union arranged for him to be reinstated and placed on
paid leave in order for him to reach a thirty-year employment milestone, which
enabled him to retire with medical benefits and an unreduced pension. 2:06-cv01320-IPJ, doc. 64 at 3–4. In connection with this agreement, Washington signed
a statement dated February 7, 2005 reading, “I will not seek future employment
with BellSouth. At the conclusion of [my unpaid leave] I will be terminated and
become a retired employee.” Id. at 4 (citing 2:06-cv-01320-IPJ, doc. 55-3 at 1).
The Washington I court noted that Washington “was told . . . in no uncertain terms
before he signed the release that BellSouth would never hire him for another job.
Consequently, the decision not to rehire [Washington] was made before
[Washington] signed the release.” Id. at 9. In other words, even viewing the
evidence in the light most favorable to Washington, the Washington I court found
that BellSouth determined it would never hire Washington again in 2005, and that
BellSouth’s decision was not discriminatory, id. at 9, 10. Consequently,
Washington cannot now argue in these consolidated cases that BellSouth
subsequently refused to rehire him in retaliation for his filings with the EEOC and
this court because BellSouth’s decision not to rehire him predated those filings. In

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sum, Washington’s present claim is barred by res judicata.3
C. Filing restrictions are warranted to preclude Washington from continuing to
abuse this court.
Finally, AT&T asks the court to sanction Washington by imposing a fine on
Washington equal to the filing fee for the two pending actions or issuing an order
prohibiting Washington from engaging in any further efforts to gain employment
with AT&T with the stipulation that Washington will be incarcerated for contempt

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Additionally, the undersigned notes that to succeed on a retaliation claim, a “plaintiff
must . . . have a ‘reasonable good faith belief’ that he was discriminated against.” Davis v. Dunn
Constr. Co., Inc., 872 F. Supp. 2d 1291, 1315 (N.D. Ala. 2012) (quoting Holifield v. Reno, 115
F.3d 1555, 1566 (11th Cir. 1997)). Based on the Washington I court’s findings discussed above,
that appears unlikely here. Finally, the undersigned acknowledges that Washington filed an
amended complaint in 14-cv-1975-TMP, which fails to state a claim for discrimination under
Title VII, and which seems to allege that the attorneys involved in his previous lawsuits
committed fraud on the court. See 14-cv-1975-TMP, doc. 7. Washington raised the same
allegations in Washington III, and the court determined they did not entitle him to relief. See 12cv-3808-MHH, doc. 7 at 2 n. 2. Consequently, in keeping with the principles of res judicata
outlined above, Washington is barred from raising the issue in this matter. Additionally, the
findings of the Washington III court on this point bear repeating:
Courts have expressed hostility to the “proposition that fraud on the court is an
authority to allow a collateral attack on a judgment—i.e., defeating the defense of res
judicata.” Plotner v. AT & T Corp., 224 F.3d 1161, 1170 (10th Cir. 2000). “Once
jurisdiction is established, fraud on the court will not vitiate the preclusive effect of the
court’s judgment unless the rendering court sets it aside.” Caliendo v. Rodriguez, 70 F.3d
1274 (Table), 1995 WL 709251, *3 (7th Cir. Nov. 30, 1995); see also Johnson v.
Champions, 909 F. Supp. 2d 1226, 1241 (S.D. Ala. 2014). If Mr. Washington wishes to
challenge the judgment in Case 2:06-CV-1320 based on his allegation of fraud on the
Court, he must raise the challenge in that action pursuant to the Federal Rules of Civil
Procedure. He may not pursue his arguments in a new lawsuit such as this.
12-cv-3808-MHH, doc. 7 at 2 n.2.

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of court for one day for each job vacancy he seeks. Doc. 7 at 6. The court declines
to grant this relief. However, because the consolidated cases are Washington’s
fourth and fifth attempts to litigate the same issue in this court, the undersigned
finds that Washington has made a habit of filing frivolous and unwarranted
lawsuits in the court. In doing so, Washington has abused both the in forma
pauperis status and this court. Accordingly, the undersigned will direct the Clerk
to refrain from processing any new action by Washington unless a Judge or
Magistrate of this court makes a pre-filing determination that the case has
sufficient merit to be filed.
Done this 20th day of January, 2015.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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