Labor & Employment Law Daily Wrap Up, PROCEDURE—5th Cir.: Fired flight simulator instructor cannot relitigate Title VII, Rehab Act claims, (Apr 8, 2025)

By Jason Albright, J.D.

He filed his first suit, challenging his termination, in August 2020.

The doctrine of res judicata bars the Title VII and Rehabilitation Act claims of a former Air Force flight simulator instructor who previously challenged his termination unsuccessfully under the same statutes, the Fifth Circuit affirmed in an unpublished opinion. Though the facts alleged in his first suit extend back to 2010, they all relate to his employment at Laughlin Air Force Base and predate the claims in his first suit. And that the potential remedies from each case would not overlap, the appeals court found, does not cure the effect of claim preclusion (Goerz v. Kendall, No. 24-50383 (5th Cir. Apr. 3, 2025, unpublished)).

Fired simulator instructor. In April 2019, according to the appeals court, the United States Air Force (USAF) terminated the plaintiff’s employment as a simulator instructor at Laughlin Air Force Base.

First lawsuit. In August 2020, he filed suit against the Secretary of the USAF, challenging his termination under the Rehabilitation Act and Title VII. The district court granted summary judgment for the Secretary, finding that the former instructor failed to show that the Secretary’s reasons for removal were pretextual, and a panel of the Fifth Circuit recently affirmed that decision.

Second suit. Three years after filing his first suit, the plaintiff filed a second Title VII claim against the Secretary in October 2023. In the second suit, he alleged that the USAF improperly paid him and denied him accrued leave between 2010 and 2019 during his employment at Laughlin Air Force Base. He initially raised these claims before the EEOC, which dismissed them in February 2023.

Dismissal and appeal. The Secretary then moved to dismiss, asserting that the claims were precluded by res judicata due to the prior judgment. The district court granted the motion to dismiss, and the former instructor timely appealed.

New claims precluded. The Fifth Circuit affirmed. In the first case, observed the court, the former instructor brought a Title VII retaliation claim for alleged discrimination and retaliation based on his previous EEO complaints, national origin, and religion. And in the second case, he again alleged unlawful discrimination and retaliation because of his national origin and EEO complaints. He also again referred to the same three EEO filings that formed the basis of his retaliation claim in the first suit.

Though the facts alleged in the second suit extended back to 2010, they all related to his employment at Laughlin Air Force Base and predated the claims in the first suit, the court found. And “[t]hat the potential remedies from each case wouldn’t overlap does not cure the preclusive effect of res judicata” here. Indeed, “‘[t]he nucleus of facts defines the claim rather than the legal theory posed or recovery sought.’” The district court thus correctly held that “[b]oth cases originate from the same continuing course of discriminatory conduct and are therefore barred by the doctrine of res judicata.”

The case is No. 24-50383.

Judge: Per curiam.

Attorneys: Hans Goerz, pro se. Huiju Jeon, U.S. Attorney's Office, for Frank Kendall, III.

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