1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 1745

_____________ ARTHUR L. STONE ,

Appellant

v. JEH JOHNSON, Acting Secretary, Department of Homeland Security

______________ On Appe al from the United States District Court for the Eastern District of Pennsylvania ( District Court No. 2

- 13

- cv
- 0 3765) District Judge: Hon. Stewart Dalzell

______________ Argued: November 20, 2014

______________ Before: McKEE, Chief Judge , RENDELL and SLOV ITER , Circuit Judges

. ( Filed: June 23, 2015 )

______________ _________ OPINION *

______________ _________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Den nis L. Friedman, Esq. [ARGUED] Suite 714 1515 Market Street Philadelphia, PA 19102 Counsel for Appellant Richard M. Bernstein, Esq. [ARGUED] Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Counsel for Appellee

M CKEE , Circuit Judge

. Plaintiff Arthur L. Stone appeals the District Court’s order granting the Department of Homeland Securi ty’s Motion to Dismiss in the action that Stone filed alleging employment discrimination on the basis of his disability . F or the reason s that follow, we will reverse the order of the District Court and remand

. 1
I.
Stone was a Federal Air Marshal employed by the Transportation Security Administration (“TSA”). He was removed from his position b ecause he had a medical
condition that rendered him unable to perform his duties. Less than a year after being removed, he claimed to have recovered and requested t hat he be returned to duty

. However, he continued to receive disability benefits from the Office of Workers’ Compensation Program (“OWCP”). When t he TSA refused to reinstate him , Stone filed a complaint before the Equal Employment Opportunity Commission alleging

1 The District Court had jurisdiction of this case pursuant to 42 U.S.C. § 2000e

- 16(c). This court has jurisdiction of this appeal under 28 U.S.C. § 1291.3

discrimination in violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. §
791 et seq ., as reprisal for “engaging in prior EEO activity challenging his termination

. ”
The Administrative J udge ruled in favor of the TSA, concluding t hat, although Stone established a prima facie case of reprisal, the TSA articulated a l egitimate, nondiscriminatory reason for its action : Stone continued to receive benefits. The
Commission affirmed the Administrative J udge’s order. Stone appealed the EE OC’s affirmance of the Administrative J udge ’s order to the District Court. The Department of Homeland Security (“DHS”) filed a motion to dismiss, contending that Stone’s action should be dismissed as collaterally estopped. T he District Court granted the motion and this appeal followed. 2
II. Four requirements must be met in order for a claim to be collaterally estopped: (1)
the identical issue must have been previousl y adjudicated; (2) the issue must have been actually litigated; (3) the previous determ ination of the issue must have been necessary to the decision; and (4) the party being precluded from relitigating the issue must have been fully r epresented in the prior action. Jean Alexander Cosmetics , 458 F.3d at 249. Mr. Stone does not deny that all fou r fac tors are present here. Stone contends, however, that

2 W e exercise plenary review of a district court’s order granting a motion to dismiss on the basis of collateral estoppel. See, e.g. , Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc. , 458 F.3d 244, 248

- 49 (3d Cir. 2006). Such a motion to dismiss under Ru le 12(b)(6) should be “granted only if, accepting the well

- pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that those allegations ‘could not raise a claim of entitlement to relie f.’” Simon v. FIA Card Servs., N.A. , 732 F.3d 259, 264 (3d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 558 (2007)).4

the District Court should not have relied on the EEOC’s ruling that the TSA did not discriminate against him because the EEOC’s decision was “not a final, unappealable
decision” and that he is entitled to trial de novo under 5 U.S.C. §§ 7702(a )(3)(B), (e)(1) and § 7703

. We agree.
A gency decisions under Title VII do not have preclusive effect because, under that statute, federal employees are entitled to a trial de novo of their employment
disc rimination claims in federal court. See Chandler v. Roudebush , 425 U.S. 840, 845 ( 1976)

. While Stone ’s claim of discrimination arises under the Reh abilitation Act of
1973 , 3 instead of Title VII, we have previously explained that federal employees suing

u nder the Rehabilitation Act are also entitled to de novo review of administrative
decisions in federal court: On conclusion of the administrative proceeding, a district court may provide two distinct forms of relief. First, a federal employee who prevails in the administrative process may sue in federal court to enforce an administrative decision with which an agency has failed to comply. Such an enforcement action does not trigger de novo review of the merits of the employee's claims. . . . Alternatively , a federal employee unhappy with the

3 I n his brief before this court, Stone argued he was “alleging that the Agency had failed to restore him to his positio n, in violation of the restoration regulations and that the Agency’s decision to deny him his restoration rights was motivated by impermissible discrimination under the Rehabilitation Act and, in particular, in reprisal for his having engaged in prior EEO activity.” (Appellant Br. at 2

- 3.) Likewise, in his Amended Complaint before the District Court, Stone stated that “the Agency had failed to restore him to his position, in violation of the restoration regulations and that the Agency's decision to deny h im his restoration rights was motivated by impermissible discrimination under the Rehabilitation Act of 1973 and, in particular, in reprisal for his having engaged in prior EEO activity. ” (J.A. 63.) In its decision, the EEOC also noted that “in his decis ion, the [ ALJ ] referred to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). Complainant's reprisal allegation, however, falls under the Rehabilitation Act.” (J.A. 26.)5

administrative decision may bring his or her claims to a district court, under Section 505(a) of the Rehabilitation Act, 29 U.S.C. § 794a(a), and receive the same de novo consideration that a private sector employee en joys in a Title VII action, u nder 42 U.S.C. § 2000e

- 16(c). Morris v. Rumsfeld , 420 F.3d 287, 290 (3d Cir. 2005) (citing Chandler , 425 U.S. at 863

. Because Stone appealed the EEOC’s decision , the District Court should have reviewed
Stone’s claims de nov o . Therefore, it erred in dismissing Stone’s suit as collaterally estopped.
III. For the reasons set forth above, we will reverse the judgment of the District Court and remand for proceedings in accordance with this decision

.