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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GEORGE HARRIS,

Plaintiff,

v.

AIR TRANSPORT DISTRICT 143

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE

WORKERS and LOCAL LODGE 1040

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE

WORKERS,

Defendants.

CASE NO. C05-1824JLR

ORDER

I. INTRODUCTION

This matter comes before the court on a motion from the Defendant trade unions

(Dkt. # 12) to dismiss Plaintiff’s claims. Neither party has requested oral argument, and

the court finds this motion suitable for disposition based on the parties’ briefing and

accompanying declarations. For the reasons stated below, the court GRANTS the motion

to dismiss.

Case 2:05-cv-01824-JLR Document 16 Filed 04/27/06 Page 1 of 6
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1

 The court has considered both Mr. Harris’s first and second amended complaints (Dkt.

## 5, 6) as one document for the purpose of deciding this motion.

ORDER – 2

II. BACKGROUND

Plaintiff George Harris, an African American man, works as a baggage handler for

Northwest Airlines (“Northwest”). In April or May of 2001, Northwest fired Mr. Harris

following allegations that he brought a gun and ammunition onto company premises, that

he threatened coworkers, and that he provided misleading information during the

company’s investigation. Harris v. Air Transp. Dist. 143, Int’l Ass’n Machinists &

Aerospace Workers, No. 03-cv-05261-RJB (“Prior Order”), at 4 (W.D. Wash. Mar. 15,

2004) (Ex. B to Harris Decl.). On November 5, 2002, after eighteen months of pursuing

a grievance, Mr. Harris accepted a Last Chance Agreement (“Agreement”) to settle his

claim against Northwest. As a result, Northwest reinstated Mr. Harris to his position, but

he received no back pay for the time he was out of work. Id. at 8. 

Mr. Harris filed his initial action against these Defendants in Pierce County

Superior Court on April 8, 2003, alleging that Defendants failed to represent him fairly in

his grievance against Northwest, and that he had no choice but to accept the Agreement

because the union was not prepared to represent him at the impending arbitration. The

union removed the case to federal court on May 16, 2003, and Judge Bryan dismissed the

case on summary judgment. Id. at 2, 19. The initial suit directly disposed of allegations

that the union’s representation was arbitrary, discriminatory, and in bad faith, due at least

in part to personal and political hostility between Mr. Harris and the union over a prior

EEOC complaint of racial discrimination. Id.

Mr. Harris filed this suit on November 2, 2005, alleging that race and retaliation

motivated the union’s deficient representation.1

 He sought relief under Title VII of the

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 Defendants also argue that the statute of limitations has run on Mr. Harris’s claim. The

court need not reach this issue.

ORDER – 3

Civil Rights Act of 1964 and the Washington Law Against Discrimination. To

demonstrate discriminatory treatment, he alleges that a similarly situated Caucasian

employee who allegedly assaulted another employee received better representation than

he did.

Defendants now move the court to dismiss for failure to state a claim under Fed.

R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”) on the theory that Mr. Harris’s prior action bars the

instant action under res judicata principles.2

III. ANALYSIS

Res judicata is an affirmative defense that is not specifically enumerated among

those defenses parties may raise by motion under Rule 12(b). However, where the

defense accepts the factual allegations of the complaint as true and does not raise

additional facts, the court may consider res judicata in a Rule 12(b)(6) motion. Scott v.

Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1983). When considering a motion to dismiss

under Fed. R. Civ. P. 12(b)(6), the court construes the complaint in the light most

favorable to the non-moving party. Osborne v. Dist. Attorney’s Office for Third Judicial

Dist., 423 F.3d 1050, 1053 (9th Cir. 2005). The court must accept all well-pleaded facts

as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P’ship

v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Dismissal for failure to

state a claim should not be granted “unless it appears beyond a reasonable doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.” Id. (internal quotations and citations omitted). The court’s review of the record

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ORDER – 4

on a Rule 12(b)(6) motion is limited to the complaint and documents referenced within

the complaint. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994).

Res judicata is a term that describes both claim preclusion, as in the present case,

and issue preclusion, otherwise known as collateral estoppel. McClain v. Apodaca, 793

F.2d 1031, 1033 (9th Cir. 1986). Claim preclusion “treats a judgment, once rendered, as

the full measure of relief to be accorded between the same parties on the same claim or

cause of action.” Id. (internal quotations omitted). Claim preclusion bars “all grounds

for recovery which could have been asserted, whether they were or not, in a prior suit

between the same parties . . . on the same cause of action.” McClain, 793 F.2d at 1033. 

Claim preclusion bars a second action when it presents claims that are identical to those

made in a first action between the same parties (or their privies) that came to a final

judgment on its merits. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713

(9th Cir. 2001). In the present case, there is no dispute that the parties are the same and

that the summary judgment in Mr. Harris’s prior suit was a final judgment on the merits. 

The sole issue is whether Hr. Harris’s claim in this action is identical to his claim in the

prior action.

Two claims may be identical for res judicata purposes even where the second case

contains additional facts or legal theories not asserted in the first. See Costantini v. Trans

World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982). The Ninth Circuit considers four

factors to determine whether two claims are identical: (1) whether the rights or interests

established in the prior judgment would be destroyed or impaired by prosecution of the

second action, (2) whether substantially the same evidence is presented, (3) whether the

two actions address the infringement of the same right, and (4) whether the second cause

of action involves “the same transactional nucleus of facts.” Id. at 1202-03. Of these

factors, the last is the most significant. Id.

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 The court treats Mr. Harris’s retaliation claim in the initial action as if he had not

actually brought it because Judge Bryan found that Mr. Harris had abandoned this claim as a

separate theory for recovery. Prior Order at 18.

ORDER – 5

Applying this standard, the Ninth Circuit in Owens upheld a res judicata dismissal

under circumstances similar to the instant case. 244 F.3d at 715. In that case, terminated

employees brought claims for breach of contract and breach of the duty of fair

representation in an original action, and then added a Title VII claim based on race in a

second action. The court held that, although there was no Title VII claim in the prior

action, the plaintiffs could have brought one, and that res judicata therefore barred the

later claim. Id. The court reached its holding even though procedural requirements

barred the plaintiffs from bringing the Title VII claim in the prior action. Id. at 714. The

court reasoned that both suits addressed the racially discriminatory motivation of the

employer. Id.

Just as in Owens, Mr. Harris did not formally bring a discrimination claim in his

prior action, but he could have. Mr. Harris testified in the prior action that he suspected

that his race motivated the Defendants’ allegedly poor representation of him in his

grievance. In addition, Mr. Harris’s race-based retaliation claim in his prior action

reveals that he suspected racial motivation, and also shows conclusively that he could

have brought his retaliation claims in the prior action.3

 In this action, as in his prior

action, the nucleus of facts centers on the union’s representation of Mr. Harris and the

reasons the representation was inadequate.

The court finds no basis to conclude that Mr. Harris was unable to bring his

present claim in his prior suit. Mr. Harris states that he could not have brought the claim

because he did not know about the similarly situated Caucasian employee at the time his

first action was pending. The court accepts the truth of this assertion. The issue,

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ORDER – 6

however, is not whether Mr. Harris had actual knowledge of the Caucasian employee, but

whether he could have learned the information through diligent discovery. The assault to

which Mr. Harris refers occurred on April 14, 2002, a year after his own termination and

a year before he filed his original action against the union. According to Mr. Harris,

there is an EEOC complaint on file regarding the incident. There is no reason for the

court to infer that the “new” evidence in this action would not have been available if Mr.

Harris had pursued appropriate discovery in his prior action.

IV. CONCLUSION

For the reasons stated above, the court GRANTS Defendants’ motion to dismiss

(Dkt. # 12). The court directs the clerk to enter judgment for Defendants.

Dated this 27th day of April, 2006.

A  

JAMES L. ROBART

United States District Judge

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