* Pursuant to 5 T H C IR

. R. 47.5, the court has determined t hat

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT



### ____________________

No 01-20025

Summary Calendar



### ____________________

FREDERICK A. BOX,

Plaintiff-Appellant,

versus

OCCIDENTAL CHEMICAL CORPORATION,

Defendant-Appellee.



### ____________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-00-CV-3501)



### ____________________________________________________________ June 29, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM: *

Frederick A. Box appeals the summary judgment dismissing his

action against Occidental Chemical Corporation. Box contends: the

district court erred by holding his s tate law claim (discharged

from his employment because he refused to perform an illegal act)

was barred by res judicata ; and it abused its discretion by denying

his motion to, inter alia , remand this action to state court.

In his firs t action against Occidental, Box claimed: in

violation of 29 U.S.C. § 651, he was discharged from his employment2

with Occidental in retaliation for complaining ab out unsafe

chemical-handling practices; and, in violation of 29 U.S.C. § 621,

Occidental discriminated against him on the basis of his age. In

the instant (second) action, filed in state, and removed to

federal, court, Box claimed he was discharged, in violation of

Texas law, for failing to commit an illegal act and a sserted a

claim under the Americans with Disabilities Act (ADA), 42 U.S.C. §

12101, et seq

.

In a comprehensive and well-reasoned opinio n, the district

court held the second action barred by res judicata

, because: both

actions involved the same parties; the judgment in the first action

was rendered by a court of competent jurisdiction; the first action

was disposed of by a final judgment on the merits; and both actions

were “based on the same nucleus of operational facts”, because

Box’s allegation in the second action (discharged for refusing to

falsify reports) was “inextricably intertwined” with his allegation

in the first (discharged in retaliation for complaining about

unsafe practices). As discussed i nfra

, it also refused Box’s

requests to amend (delete the federal

— ADA

— claim ) and for

concomitant remand to state court. B ox v. Occidental Chem. Corp

.,

No. H-00-3501 (S.D. Tex. 1 Dec. 2000).

We reject Box’s contention that his retaliatory discharge

claim in the first action was not adjudicated on the merits. The

district court in the first action dismissed that claim pursuant to3

Federal Rule of Civil Procedure 12(b)(6). Because the order does

not specify otherwise, the dismissal was an adjudicatio n on the

merits, pursuant to Rule 41(b), which provides: “Unless the court

in its order for dismissal otherwise specifies, a dismissal under

this subdivision and any dismissal not provided for in this rule,

other than a dis missal for lack of jurisdiction, for improper

venue, or for failure to join a party under Rule 19, operates as an

adjudication upon the merits”. F ED

. R. C IV

. P. 41(b).

Box does no t challenge the district court’s ruling with

respect to the remaining elements for application of res judicata

.

Although he contends that his age discrimination claim and his

discharged-for-refusing-to-commit-illegal-act claim are not the

same claim and are based on different facts, he does not challenge

the distri ct court’s conclusion that his r etaliatory discharge

claim in the first action and his discharged-for-refusingto- commit-illegal-act claim in the second are based on the same

nucleus of operational facts. In so doing, he apparently relies on

the erroneous assumption that the retaliatory discharge claim was

not adjudicated on the merits in the first action.

Finally, concerning Box’s remand assertion, the district court

denied Box’s post-removal motion to amend his complaint to delete

his ADA claim. In any event, e ven if it had allowed the amendment

to delete the only federal claim raised, the district court had

discretion to exercise supplemental jurisdiction over Box’s state-4

la w claim. S ee 28 U.S.C. § 1367; see also Guzzino v. Felterman

,

191 F.3d 588, 595 (5th Cir. 1999) (noting “wide discretion vested

in the trial court to order a remand of state claims on the heels

of a dismissal of federal claims”). It did n ot abuse that

discretion.

AFFIRMED