In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1485, 09-2218 & 09-3754
W OJCIECH C ZARNIECKI,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 07 C 5316 & 09 C 2730—Amy J. St. Eve, Judge.
A RGUED S EPTEMBER 14, 2010—D ECIDED JANUARY 21, 2011
Before B AUER, F LAUM, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Plaintiff Wojciech Czarniecki
was a probationary police officer of the Chicago Police
Department from November 2006 until he was dis-
missed in February 2007. In two federal lawsuits,
Czarniecki has alleged that he was improperly dismissed
because of his Polish national origin. In September 2007,
Czarniecki filed the first suit against the City of
Chicago and the Assistant Deputy Superintendent of the
Police Academy, Matthew Tobias, under 42 U.S.C. § 1983
2 Nos. 09-1485, 09-2218 & 09-3754
alleging national origin discrimination in violation of the
equal protection clause of the Fourteenth Amendment.
The district court first granted summary judgment in
favor of the City on the § 1983 claim. Shortly before a
trial on the claim against Tobias, the court granted
Czarniecki’s motion to dismiss his claim against Tobias
without prejudice under Rule 41(a).
In May 2009, Czarniecki filed the second lawsuit
alleging that the City intentionally discriminated against
him based on his national origin in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The district court ruled that the Title VII lawsuit was
barred by claim preclusion (res judicata) because it arose
out of the same set of operative facts as the earlier § 1983
case in which there was a final resolution in favor of the
City. We agree and affirm the district court’s decision.
We also dismiss as moot Czarniecki’s two other related
appeals.
I. Factual and Procedural Background
A. Czarniecki’s National Origin Discrimination Claim
Under 42 U.S.C. § 1983
In September 2007, Wojciech Czarniecki brought a
lawsuit under 42 U.S.C. § 1983 against the City of
Chicago and Tobias. The complaint alleged that Tobias
terminated Czarniecki’s employment based on national
origin discrimination that violated the equal protection
clause of the Fourteenth Amendment. For purposes of
this appeal, we will treat Czarniecki’s allegations as true.
Nos. 09-1485, 09-2218 & 09-3754 3
Tobias allegedly called Czarniecki into his office to
discuss Czarniecki’s use of exam study guides, and then
asked him a series of questions about where he was
born (Poland), where his parents were born (Poland), and
what language he spoke at home (Polish). Tobias then
allegedly said to Czarniecki: “We don’t need people like
you.” When Czarniecki asked Tobias what his Polish
heritage had to do with the exam study guides, Tobias
told Czarniecki “you have no rights” and said that he
could fire Czarniecki for “anything.” Shortly thereafter,
Czarniecki was dismissed from the Police Academy.
Czarniecki asserted that he was dismissed on the basis
of national origin discrimination and that Tobias’s com-
ments were direct evidence of that discrimination. The
City of Chicago maintained that it terminated Czarniecki’s
at-will, probationary employment based on his lack of
honesty concerning his test-taking and his failure to
follow his supervisor’s direct order not to discuss with
other recruits an investigation of misuse of study guides
for examinations. Czarniecki has denied all allegations
of wrongdoing.
Czarniecki further alleged in the § 1983 case that his
termination was part of an ongoing pattern of discrim-
ination and anti-Polish bias at the Police Academy.
Czarniecki alleged that his dismissal occurred a mere
six days after the termination of another Polish recruit,
Peter Palka, who was allegedly terminated by Tobias on
the pretext of not having read the Police Academy’s
firearm manual. Tobias allegedly called Palka into his
office, asked questions about his Polish heritage, and told
4 Nos. 09-1485, 09-2218 & 09-3754
Palka that they “didn’t need people” like him in the
Academy. 1 Czarniecki alleged in his complaint that his
pretextual termination was part of a pattern in which
Hispanic, non-white males at the Police Academy are
favored over other ethnicities, races, and colors. He also
alleged that Tobias had engaged in discriminatory treat-
ment towards African-Americans, Asians, and women,
and had been the subject of numerous federal discrimina-
tion lawsuits.
In September 2008, the district court granted summary
judgment in favor of the City on the § 1983 claim. At
the same time, the district court denied summary judg-
ment on the individual claim against Tobias, rejecting
Tobias’s defense of qualified immunity under § 1983.
Viewing the evidence in the light most favorable to
Czarniecki, Tobias’s remarks were direct evidence of
national origin discrimination, which is clearly unlawful,
and Czarniecki had thus offered evidence creating a
genuine issue of material fact for trial.
1
In Palka v. City of Chicago, 2008 WL 3895486 (N.D.Ill. 2008), the
district court granted the City’s motion for summary judgment
on the § 1983 claim but denied the motion for summary judg-
ment as to Tobias. In a related case, Peter Palka’s father, Tadeusz
Palka, filed a complaint against Cook County officials and
members of the Chicago Police Department alleging that he
was harassed for challenging Tobias’s decision to dismiss his
son from the Chicago Police Department. See Palka v. Shelton,
623 F.3d 447 (7th Cir. 2010) (affirming dismissal of Palka’s
claims with prejudice).
Nos. 09-1485, 09-2218 & 09-3754 5
Two months before the scheduled trial, however,
Czarniecki moved to dismiss his claim against Tobias
without prejudice under Rule 41(a)(2) of the Federal
Rules of Civil Procedure. Czarniecki asserts that he
moved to dismiss because the district court had granted a
motion that would have prevented him from being rein-
stated as a probationary officer and recovering back pay
and punitive damages. In January 2009, the district
judge granted Czarniecki’s motion to dismiss under
Rule 41(a)(2). Exercising her discretion to impose terms
on a Rule 41(a)(2) dismissal, she also ordered that if the
plaintiff wanted to refile the action, he would have to
seek her permission to do so.
B. Czarniecki’s National Origin Discrimination Claim Under
Title VII
Czarniecki filed his second federal action in May 2009,
alleging that the City intentionally discriminated
against him in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., based on his
national origin. Under the district court’s supplemental
jurisdiction, 28 U.S.C. § 1367(a), Czarniecki also alleged
state-law claims of intentional infliction of emotional
distress, negligent infliction of emotional distress, and
negligent supervision.
In October 2009, the district court dismissed the Title
VII claim and the supplemental state-law claims with
prejudice under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. The court ruled that the Title VII case
was barred by claim preclusion, also known as res
6 Nos. 09-1485, 09-2218 & 09-3754
judicata, because it arose out of the same set of operative
facts as the earlier § 1983 case. Czarniecki now appeals
that decision.2
II. Analysis
We first review de novo the district court’s decision to
dismiss Czarniecki’s Title VII claim on res judicata
grounds. Tartt v. Northwest Community Hospital, 453 F.3d
817, 822 (7th Cir. 2006). “The doctrine of [res judicata or]
claim preclusion is premised on the idea that, when a
claim has been fully litigated and come to judgment on
the merits, finality trumps.” In re Ingersoll, Inc., 562 F.3d
856, 861 (7th Cir. 2009). “Claim preclusion under
federal law has three ingredients: a final decision in the
2
In February 2009, Czarniecki also appealed the district judge’s
order, challenging her right to place conditions on the Rule 41(a)
dismissal. That appeal is docketed as No. 09-1485. In April 2009,
Czarniecki sought leave to file a Title VII action, and the judge
refused to grant permission for leave to file the action because
she no longer had jurisdiction over the case while the Rule 41(a)
decision was on appeal. In May 2009, Czarniecki appealed
the April 2009 order, docketed as No. 09-2218. We have consoli-
dated all three appeals for purposes of argument and decision.
The merits of the § 1983 national origin discrimination claim
are not before us. The plaintiff suggested at oral argument
that he was appealing both the district court’s res judicata
decision and its earlier grant of summary judgment in favor
of the City on the § 1983 claim. The latter issue is not before us
on appeal and was not briefed by the parties.
Nos. 09-1485, 09-2218 & 09-3754 7
first suit; a dispute arising from the same transaction
(identified by its ‘operative facts’); and the same
litigants (directly or through privity of interest).” United
States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 851
(7th Cir. 2009) (citations omitted); see also Ross ex. rel. Ross
v. Board of Education of Township High School District 211,
486 F.3d 279, 283 (7th Cir. 2007); Herrmann v. Cencom Cable
Associates, Inc., 999 F.2d 223, 224 (7th Cir. 1993).3
We agree with the district court that all of these ingredi-
ents are present in this case. First, the parties do not
dispute that there was a final judgment in Czarniecki’s
§ 1983 lawsuit against the City of Chicago. While the
district court dismissed Czarniecki’s complaint without
prejudice under Rule 41(a), the district court had
already found in favor of the City on a summary judg-
ment motion on September 24, 2008. While generally a
3
The plaintiff argues that this court must apply Illinois res
judicata principles—and specifically the “same evidence test.”
The plaintiff misconstrues the controlling case law. We apply
state res judicata principles when the earlier action in question
was decided in state court. See Rockford Mut. Ins. Co. v. Amerisure
Ins. Co., 925 F.2d 193, 195 (7th Cir. 1991), citing Marrese v.
American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985).
But when the issue is whether an earlier federal judgment has
preclusive effect on a subsequent federal claim, we apply
federal res judicata principles. See Ross, 486 F.3d at 283, citing
Restatement (Second) of Judgments § 87 (1982). We are not
convinced by the plaintiff’s argument that the examples in the
Restatement show that the “same transaction” test should not
apply here.
8 Nos. 09-1485, 09-2218 & 09-3754
dismissal without prejudice is not considered final
because the plaintiff may refile his case, see Mostly Memo-
ries, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093, 1097
(7th Cir. 2008), dismissal without prejudice sometimes
can support a finding of claim preclusion. See, e.g., Parvati
Corp. v. City of Oak Forest, ___ F.3d ___, 2010 WL 5185835,
at *4 n.8 (7th Cir. Dec. 23, 2010); Muhammad v. Oliver, 547
F.3d 874, 876 (7th Cir. 2008) (“when a suit is abandoned
after an adverse ruling against the plaintiff, the judg-
ment ending the suit, whether or not it is with prejudice,
will generally bar bringing a new suit that arises from
the same facts as the old one”). As the appellees indi-
cate, we have repeatedly found that even if a court dis-
misses claims “without prejudice,” we assess “finality”
by whether the district court “has finished with the case.”
See Mostly Memories, Inc., 526 F.3d at 1097, citing Hill v.
Potter, 352 F.3d 1142, 1144 (7th Cir. 2003). There is no
question that the district court’s grant of summary judg-
ment to the City has given rise to a final judgment in
favor of the City. Even Czarniecki acknowledges that it
was a final decision: “There was a decision on the merits
on the § 1983 action against the City, albeit a wrong
decision which is why it is being appealed.” As the dis-
trict court concluded, the fact that Czarniecki does not
dispute that there was a final judgment amounts to an
abandonment of that argument. See Steen v. Myers,
486 F.3d 1017, 1020 (7th Cir. 2007) (absence of discussion
amounts to abandonment of claims).
Second, the old and new cases involved the same parties.
In both the § 1983 case and the Title VII case, Czarniecki
sued the City of Chicago. The fact that the second lawsuit
Nos. 09-1485, 09-2218 & 09-3754 9
does not include Tobias as a defendant does not affect
the analysis.
Third, the dispute at the core of the Title VII claim arises
from the same transaction or the same core of “operative
facts” as the dispute at issue in the § 1983 claim.
Czarniecki’s allegations in the Title VII lawsuit are es-
sentially the same allegations against the City of Chicago
in his § 1983 lawsuit: that the City of Chicago dismissed
him as a probationary police officer on the basis of
national origin discrimination. Czarniecki further alleges
that the discrimination he experienced is part of a pattern
of discrimination and harassment at the Police Academy.
As the district court concluded, the only differences
between the first lawsuit and the second lawsuit are the
theories of liability and the fact that the second com-
plaint adds state-law claims for emotional distress.
We reject Czarniecki’s argument that because the opera-
tive facts needed to prove a Title VII claim and a § 1983
claim are a little different, there is no claim preclusion.
That approach would thoroughly undermine claim pre-
clusion and would allow endless litigation as long as
a lawyer could identify a slightly different cause of
action with one element different from those in the
first, second, or third lawsuits between the same parties
arising from the same events. We have consistently ex-
plained: “Two claims are one for the purposes of res
judicata if they are based on the same, or nearly the
same, factual allegations.” Brzostowski v. Laidlaw Waste
Systems, Inc., 49 F.3d 337, 339 (7th Cir. 1995); accord,
Prochotsky v. Baker & McKenzie, 966 F.2d 333, 334-35
10 Nos. 09-1485, 09-2218 & 09-3754
(7th Cir. 1992) (affirming dismissal of second case and
holding that two claims or theories of recovery (ERISA
and Title VII) arising from plaintiff’s dismissal amounted
to a single cause of action for purposes of claim preclu-
sion); Smith v. City of Chicago, 820 F.2d 916, 918 (7th Cir.
1987) (although “one group of facts may give rise to
different claims for relief upon different theories of re-
covery, there remains a single cause of action. . . . Once
a transaction has caused injury, all claims arising from
that transaction must be brought in one suit or be lost.”)
(citations omitted); see also Highway J Citizens Group v.
U.S. Dept. of Transportation, 456 F.3d 734, 741 (7th Cir.
2006), quoting Nevada v. United States, 463 U.S. 110, 129-30
(1983) (res judicata or claim preclusion provides that a
final judgment is final “not only as to every matter
which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter
which might have been offered for that purpose”). Title VII
claims are not immune from res judicata, as the plain-
tiff seems to suggest. See Herrmann, 999 F.2d at 225.
Because both of Czarniecki’s federal claims and his new
state-law claims are based on the same set of factual
allegations as his § 1983 claim, res judicata bars
Czarniecki’s Title VII claim and his state-law claims.
Plaintiff’s principal argument for avoiding claim pre-
clusion on his Title VII claim is that he faced a legal
obstacle that barred him from asserting his Title VII claim
at the same time he filed his § 1983 case. He was not
yet able to obtain the requisite “right-to-sue” letter from
the Equal Employment Opportunity Commission, see 42
U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(d), until after
Nos. 09-1485, 09-2218 & 09-3754 11
the two-year statute of limitations period expired for the
§ 1983 claim. The argument is meritless. Plaintiffs in the
same situation as Czarniecki—seeking relief under § 1983
and Title VII or other federal employment discrimination
statutes for the same adverse employment action—rou-
tinely ask district courts to stay the first lawsuit until
they obtain a right-to-sue letter. See Brzostowski, 49 F.3d
at 339 (plaintiff could have delayed the filing of the first
suit or requested that the court stay the first case);
Herrmann, 999 F.2d at 225 (“the employee can sue on
his other claims, ask the court . . . to stay the proceedings
until the Title VII administrative process is complete,
and then if the process does not end in a way that
satisfies him amend his complaint to add a Title VII
count.”).
Plaintiff Czarniecki never asked the district court to
stay his first case until he obtained a right-to-sue letter.
His excuse, his assertion that “people who practice law
for a living” should know that district judges will
not grant a stay for § 1983 claims while awaiting Title VII
right-to-sue letters, is simply not accurate. See id. We
are also not persuaded by the plaintiff’s argument that
high-ranking EEOC officials from the Chicago office
attested that they would not issue an expedited right-to-
sue letter because plaintiff’s claim was also being handled
by the Illinois Department of Human Rights. If that was
the case, there was all the more reason for the district
court to grant a stay. We reject plaintiff’s argument that
a judge who grants a stay in a case like this would be
violating the Civil Justice Reform Act of 1990 by not
moving cases quickly enough. Apart from the fact that a
12 Nos. 09-1485, 09-2218 & 09-3754
judge’s management of a case will not “violate” that Act,
a district judge would have every reason to grant a stay
when a plaintiff seeks relief under both § 1983 and an
employment discrimination statute. The alternative
rule that plaintiff proposes would require courts and
parties routinely to litigate such cases twice—an expen-
sive and wasteful approach that is not required by any
applicable law.
Czarniecki could have avoided res judicata by: (a) asking
the district court to stay the § 1983 case until he had
exhausted his Title VII administrative remedies,
(b) contacting the EEOC to expedite the administrative
process and/or to obtain an earlier right-to-sue letter,
and/or (c) delaying the filing of his first lawsuit based on
the § 1983 claim. Czarniecki’s choice to pursue his § 1983
case first, without taking any of those steps, means that
his additional legal theories arising from the same
events are barred by claim preclusion or res judicata. We
affirm the district court’s decision to dismiss the com-
plaint as a whole.
The plaintiff cites two cases—University of Tennessee v.
Elliot, 478 U.S. 788 (1986), and Buckhalter v. Pepsi-Cola
General Bottlers, Inc., 820 F.2d 892 (7th Cir. 1987)—for the
proposition that the dismissal of a Ҥ 1983 [claim] has
no impact on the ability of a plaintiff to bring a claim
under Title VII.” Those cases are not relevant to the
preclusive effect of Czarniecki’s § 1983 claim on his Title
VII claim. In Elliot, the Supreme Court held that deci-
sions in unreviewed state administrative proceedings
do not have preclusive effect on Title VII claims, 478 U.S.
Nos. 09-1485, 09-2218 & 09-3754 13
at 796, and in Buckhalter, we held that an unreviewed deci-
sion by the Illinois Human Rights Commission is not
entitled to preclusive effect in federal courts under
Elliot. 820 F.2d at 895. Neither of those cases relate to the
preclusive effect a federal court’s final judgment on a
§ 1983 claim will have on a subsequent Title VII claim
based on the same factual allegations. Likewise, another
case that the plaintiff cites, Chandler v. Roudebush, 425 U.S.
840 (1976), allows for de novo review of employment
discrimination claims under Title VII following the ex-
haustion of administrative remedies. That scenario has
nothing to do with this case, where the plaintiff brought
a Title VII claim after losing a final judgment on a
federal claim based on the same factual allegations.
Finally, we turn to Czarniecki’s two other pending
appeals. First, in February 2009, Czarniecki appealed the
district court’s order requiring, as a condition of the
Rule 41(a) dismissal, that plaintiff’s counsel seek leave of
the court before reinstating the case or filing any new
federal claims based on the same underlying conduct.
The second appeal, from May 2009, is based on an
order issued by the district judge in April 2009 declining
to grant leave for the plaintiff to file a Title VII claim
because she no longer had jurisdiction over the case
because the Rule 41(a) decision was on appeal. Both of
these appeals are moot because Czarniecki later filed
his second federal action asserting federal and state-law
claims based on the same underlying conduct. All of those
claims were properly dismissed on grounds of claim
preclusion. There are no other issues to be resolved in
these appeals. See St. John’s United Church of Christ v. City
14 Nos. 09-1485, 09-2218 & 09-3754
of Chicago, 502 F.3d 616, 626 (7th Cir. 2007) (“Under Article
III, § 2 of the United States Constitution, federal court
jurisdiction is limited to ‘actual, ongoing controversies.’ ”).
III. Conclusion
The judgment of the district court in No. 09-3754 dis-
missing plaintiff’s Title VII claim and supplemental state-
law claims is A FFIRMED. The appeals in No. 09-2218
and No. 09-1485 are D ISMISSED as moot.
1-21-11