In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2042
P ETER J. P ALKA,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO and M ATTHEW T OBIAS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 5211—Nan R. Nolan, Magistrate Judge.
No. 09-3796
P ETER J. P ALKA and T ADEUSZ P ALKA,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO and
C OOK C OUNTY S HERIFF’S D EPARTMENT,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 2363—Virginia M. Kendall, Judge.
A RGUED D ECEMBER 7, 2010—D ECIDED O CTOBER 18, 2011
2 Nos. 09-2042 & 09-3796
Before R IPPLE, K ANNE, and SYKES, Circuit Judges.
S YKES, Circuit Judge. In 2007 Peter Palka was dismissed
as a probationary police officer in the officer-training
program at the Chicago Police Academy. He claims he
was fired because of his Polish ethnicity. The City says
he was terminated because he violated departmental
rules and repeatedly flunked the firearms exam. Peter’s
father, Tadeusz Palka, a Cook County Deputy Sheriff,
contacted Matthew Tobias, Peter’s supervisor at the
Chicago Police Academy, and tried to get his son rein-
stated. That effort failed.
Peter’s dismissal from the Academy set off a strange
series of events. After Tobias rebuffed the elder Palka’s
plea for his son’s reinstatement, an unidentified caller
with an Eastern European accent placed an odd phone
call to the school Tobias’s children attended, asking
suspicious and disturbing questions about the children.
Tobias suspected that Tadeusz was the caller, and at his
request the Cook County Sheriff began a formal investiga-
tion. A disciplinary hearing was scheduled, but Tadeusz
took early retirement just before it was held. He then
sued Cook County and its Sheriff, the City of Chicago, and
numerous city and county employees asserting various
constitutional claims under 42 U.S.C. § 1983. We affirmed
the dismissal of that suit. See Palka v. Shelton, 623 F.3d
447 (7th Cir. 2010) (“Palka I”).
Litigation by the Palkas proliferated, however. While
Palka I was pending in the district court, Peter filed a § 1983
suit against the City of Chicago and Tobias. Later, Peter
and Tadeusz together filed suit against the City and
Nos. 09-2042 & 09-3796 3
County alleging employment discrimination in violation
of Title VII. Peter’s § 1983 suit was largely resolved in
favor of the defendants; the district court granted sum-
mary judgment for the City and entered several rulings
narrowly circumscribing the remaining claim against
Tobias. In response Peter moved to voluntarily dismiss
his claim against Tobias. That motion was granted, and
Peter appealed. In the joint Title VII case, the district
court applied res judicata and dismissed the claims of
both plaintiffs. The Palkas appealed. We consolidated
the two appeals and now affirm the judgments in both
cases.
I. Background
Much of the factual background is outlined in our
decision in Palka I. We restate only the facts necessary to
an understanding of the issues in the present appeals.
A. Peter’s Termination and Tadeusz’s § 1983 Suit
On February 1, 2007, Peter Palka was terminated from
his position as a probationary police officer in the officer-
training program at the Chicago Police Academy. Matthew
Tobias, the Assistant Deputy Superintendent of the Acad-
emy, recommended the termination to those higher up
in the chain of command: Ellen Scrivner, the Deputy
Superintendent of the Bureau of Administrative
Services, and Bradford Woods, the Personnel Division
Commander. Tobias told his superiors that Peter had
violated departmental rules against lying, evasion, and
4 Nos. 09-2042 & 09-3796
deceit when he revealed confidential information to
another recruit during a training exercise designed to
test officers’ responses to harsh interrogations. Tobias’s
recommendation was also based on Peter’s repeated
inability to pass the firearms qualifying test, which was
perhaps attributable to his (admitted) failure to read
the department’s firearms manual (another rules viola-
tion). Peter maintains that he was fired because of his
Polish national origin.
Soon after Peter was terminated from the Academy, his
father, Tadeusz Palka, then a Cook County Deputy
Sheriff, contacted Tobias and argued for his son’s rein-
statement. Tobias refused, noting in particular Peter’s
failure to read the firearms manual. Two months later, in
May 2007, an unidentified male called the school Tobias’s
children attended and asked suspicious questions about
the children under the guise of being a “friend” who
wanted to send flowers to the children for their birth-
days. The school receptionist contacted Tobias about the
strange call and told him that the caller had an
Eastern European accent. Tobias suspected that Tadeusz
was the caller and asked a colleague to investigate it. The
colleague traced the call to a county building where
Tadeusz sometimes worked.
Armed with this information, Tobias filed a complaint
with the Sheriff’s Department’s Office of Internal Affairs
and accused Tadeusz of placing the call. A formal investi-
gation ensued, and Tadeusz was placed on paid suspen-
sion. In due course Internal Affairs filed a charge with
the Sheriff’s Department’s Merit Board recommending
Nos. 09-2042 & 09-3796 5
that Tadeusz be terminated. Just prior to the Merit Board
hearing, at the suggestion of his supervisor, Tadeusz
took early retirement. In Palka I he claimed that he was
wrongfully induced to take early retirement in violation
of his constitutional rights.
In that lawsuit—the first in this series—Tadeusz
asserted claims under § 1983 against the County, the
Sheriff, the City and a number of city and county law-
enforcement officers in their individual capacities, based
on allegations that they violated his substantive and
procedural due-process rights and his right to occupa-
tional liberty. Palka I, 623 F.3d at 451. The complaint also
included Monell claims against the City and County. The
district court dismissed for failure to state a claim
under any of these legal theories, and we affirmed. Id.
at 453-55.
B. Peter’s § 1983 Suit
Shortly after Tadeusz filed his complaint in Palka I, Peter
filed a similar suit under § 1983 against the City and
Tobias in his individual capacity. Peter alleged that Tobias
had discriminated against him on the basis of his Polish
ethnicity. He claimed that ethnic animus was the real
reason for Tobias’s recommendation that he be dis-
missed from the Academy and that the claimed perfor-
mance problems were only pretext. Among other
remedies, Peter sought reinstatement and back pay.
The defendants moved for summary judgment. The
district court granted the motion, but only in part. The
6 Nos. 09-2042 & 09-3796
court held that factual disputes about Tobias’s reasons
for terminating Peter precluded summary judgment on
the claim against Tobias. But the court held that even if
Peter could prove Tobias had a discriminatory motive
for firing him, the City could not be held liable because
Peter failed to adduce any evidence that Tobias was a
municipal policymaker with final authority or that the
City maintained a policy or custom of discrimination,
as required for municipal liability under Monell v. Depart-
ment of Social Services, 436 U.S. 658, 691 (1978). Accord-
ingly, the court entered summary judgment for the
City; the claim against Tobias was allowed to proceed.
The parties thereafter consented to the jurisdiction of
a magistrate judge, see 28 U.S.C. § 636(b)(1), who nar-
rowed the scope of the relief available on the remaining
claim. The magistrate judge held that Peter could not
seek reinstatement as a remedy because Tobias was sued
in his individual capacity and as such lacked authority
to reinstate. Following this ruling, Peter moved for volun-
tary dismissal under Rule 41(a) of the Federal Rules of
Civil Procedure. The magistrate judge thought dismissal
without prejudice at that late stage of the proceedings
might prejudice Tobias and sought to clarify the terms of
the dismissal. See F ED. R. C IV. P. 41(a)(2) (“[A]n action
may be dismissed at the plaintiff’s request only by court
order, on terms that the court considers proper.”). The
judge said she would allow the voluntary dismissal of
the claim against Tobias but would enter a final judg-
ment dismissing the claims against the City with preju-
dice. Peter was given the opportunity to object to these
terms but did not. The judge then dismissed the claims
Nos. 09-2042 & 09-3796 7
against the City with prejudice, dismissed the claim
against Tobias without prejudice, and terminated the
case. Peter appealed.
C. The Title VII Suit by Father and Son
While both § 1983 suits were proceeding in the district
court, Tadeusz and Peter were pursuing administrative
remedies before the Equal Employment Opportunity
Commission in anticipation of filing Title VII claims
against their former employers. In February 2009 each
received a right-to-sue letter. By this time the district
court had already dismissed Tadeusz’s § 1983 case, and
his appeal was in its early stages. Peter’s § 1983 case,
meanwhile, was still pending in the district court,
although the court had entered summary judgment for
the City.
On April 17, 2009, the Palkas jointly filed a third suit
against the City and County alleging violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 200e et seq.1
The complaint alleged the same basic facts as the individ-
ual § 1983 suits. The case was functionally two Title VII
lawsuits, one by each Palka against his former munic-
ipal employer. The complaint sought “declaratory, in-
junctive and other equitable relief from discrimination
in employment.”
1
By this time, the magistrate judge in Peter’s § 1983 case had
dismissed the entire suit. Indeed, on the same day that the
Palkas filed their Title VII action, Peter filed his notice of
appeal in his § 1983 case.
8 Nos. 09-2042 & 09-3796
The City and County eventually moved to dismiss on
the basis of res judicata, and the district court granted the
motions. The court held that the complaint “essentially
combines the facts alleged in the separate prior com-
plaints, and somewhat alters the telling of the story, but
does not allege any new facts or events occurring after
the Palkas’ termination by their employers.” The court
rejected the Palkas’ argument that res judicata should
not apply because the cases were based on different
legal theories. The court also rejected their contention
that they could not bring their Title VII claims with their
§ 1983 suits because they had not yet received permis-
sion to sue from the EEOC. The court noted that the
Palkas could have filed their EEOC claims earlier or asked
to stay their § 1983 suits until they had their right-to-sue
letters in hand. The Palkas appealed.
II. Discussion
Though the facts of the consolidated appeals overlap, the
legal issues presented are distinct. We begin with
Peter’s § 1983 case and then move to the Palkas’ joint
Title VII suit.
A. Peter’s § 1983 Claims
Peter seeks review of the district court’s decision grant-
ing summary judgment for the City as well as the magis-
trate judge’s order excluding reinstatement as a remedy
against Tobias. Summary judgment in the City’s favor
was entirely appropriate; Peter has no evidence to
Nos. 09-2042 & 09-3796 9
support a Monell policy-or-custom claim against the
City. Peter’s voluntary dismissal of his claim against
Tobias bars our review of the judge’s interlocutory order
circumscribing the available remedies on that claim.
We note a jurisdictional matter first. The judgment
below dismissed Peter’s claim against the City on the
merits but dismissed his claim against Tobias without
prejudice on Peter’s Rule 41(a) motion for voluntary
dismissal. Dismissal of the latter claim without prejudice
left Peter arguably free to refile it. This kind of split
judgment ordinarily would not be considered “final” and
therefore appealable under 28 U.S.C. § 1291 because it
does not wind up the entire litigation in the district
court. See ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235
F.3d 360, 365 (7th Cir. 2000). The purpose of § 1291 and
the final-judgment rule is to prevent piecemeal appeals.
On the face of it, that concern is implicated here.
However, when there is no chance that the case could
be continued in the district court, the final-judgment rule
is satisfied and we may take jurisdiction. Id. at 363
(“Whether a decision is final for purposes of § 1291 gener-
ally depends on whether the decision by the district
court ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.” (quotation
marks omitted)). For example, where dismissed but
revivable claims remain and would otherwise preclude
appellate jurisdiction, we have permitted the party con-
trolling those claims to “unequivocally dismiss[] [them]
with prejudice” following an otherwise premature
notice of appeal, thereby eliminating the jurisdictional
10 Nos. 09-2042 & 09-3796
defect. India Breweries, Inc. v. Miller Brewing Co., 612 F.3d
651, 657 (7th Cir. 2010); see also Arrow Gear Co. v. Downers
Grove Sanitary Dist., 629 F.3d 633, 637 (7th Cir. 2010)
(same). Similarly, when an otherwise revivable claim
cannot be refiled because the statute of limitations has
run, its dismissal without prejudice does not preclude
appellate jurisdiction over other claims that were dis-
missed on the merits. Doss v. Clearwater Title Co., 551 F.3d
634, 639 (7th Cir. 2008). That is just the case here.
Peter’s claim against Tobias was dismissed on March 18,
2009, and Illinois law (which controls for § 1983 purposes)
provides a one-year statute of limitations for refiling a
voluntarily dismissed claim. 735 ILL C OMP. S TAT. 5/13-217;
Jenkins v. Vill. of Maywood, 506 F.3d 622, 624 (7th Cir. 2007).2
That time limit has expired, so any attempt to refile the
§ 1983 claim against Tobias would be time-barred. This
removes any jurisdictional barrier to Peter’s appeal of
the order dismissing his claim against the City.
Our review of that order is de novo. Cyrus v. Town of
Mukwonago, 624 F.3d 856, 861 (7th Cir. 2010) (summary
judgments are reviewed de novo). For the City to be liable,
Peter must establish that Tobias acted pursuant to a
municipal custom, policy, or practice. Monell, 436 U.S. at
691; Wragg v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir.
2010). More specifically,
2
The current version of this statute does not expressly refer to
voluntary dismissals, but the law deleting that reference was
held unconstitutional in its entirety in Best v. Taylor Machine
Works, 689 N.E.2d 1057 (Ill. 1997).
Nos. 09-2042 & 09-3796 11
[t]o establish an official policy or custom, a plaintiff
must show that his constitutional injury was caused
by (1) the enforcement of an express policy of the
[city], (2) a widespread practice that is so permanent
and well settled as to constitute a custom or usage
with the force of law, or (3) a person with final
policymaking authority.
Wragg, 604 F.3d at 467 (quotation marks omitted). Absent
proof that the injury in question was caused by an em-
ployee with final policymaking authority or by an
express policy or established custom of the municipality,
there can be no liability on the part of the municipality
itself. In other words, unless Tobias was the final
policymaking authority or was acting under a City
policy, practice, or custom, the City cannot be liable for
his actions; there is no respondeat superior liability
under § 1983. See Monell, 436 U.S. at 691; see also Waters
v. City of Chicago, 580 F.3d 575, 580-81 (7th Cir. 2009).
Peter advances what can perhaps be described as an
“inaction” theory of municipal liability. He argues that
because Tobias’s recommendations regarding the
dismissal of police recruits were generally approved and
acted on by officials above him in the supervisory chain,
the City may be held liable for its failure to stop Tobias’s
unconstitutional discrimination. For support he relies
almost exclusively on the Sixth Circuit’s decision in
Arendale v. City of Memphis, 519 F.3d 587 (6th Cir. 2008).
In Arendale a former Memphis police officer sued the
City of Memphis under § 1983 claiming that he was the
victim of a discriminatory termination. Id. at 593. Al-
12 Nos. 09-2042 & 09-3796
though it rejected the officer’s claim, the Sixth Circuit
suggested that § 1983 liability could be imposed on a
municipal unit of government based on a custom or
policy of “inaction.” Id. at 599. To prevail on such a
claim, the court said the plaintiff must show:
(1) the existence of a clear and persistent pattern of
discrimination by municipal employees; (2) notice
or constructive notice on the part of the City; (3) the
City’s tacit approval of the unconstitutional conduct,
such that its deliberate indifference in its failure
to act can be said to amount to an official policy
of inaction; and (4) that the City’s custom was the
“moving force” or direct causal link in the constitu-
tional deprivation.
Id. at 599-600.
To us this looks more like a fact-specific application of
ordinary Monell policy-or-custom doctrine than a new
“inaction” theory of municipal liability under § 1983.
Regardless, and without endorsing the “custom or policy
of inaction” theory Peter urges upon us, the claim
cannot survive summary judgment. Peter’s evidence is
meager, consisting only of his own subjective allegation
that Tobias discriminated against him; a similar allega-
tion by Wojciech Czarniecki, another Polish officer who
was terminated by Tobias; and some “statistics” regarding
recruits Tobias terminated.
To begin, the statistical evidence is worthless. It is
simply a series of numbers without any context: “Of
51 recruits Tobias recommended for termination, all of
whom were terminated by the Chicago Police Depart-
Nos. 09-2042 & 09-3796 13
ment from the Academy, the breakdown was as follows:
white 11; black 14; female 16; Asian 3; foreign ethnic
7; Hispanic 14; Middle East 1.” It is entirely unclear
what this evidence is meant to show. Is Tobias biased
against men, who account for more than two-thirds of
those terminated? Or is he biased against women because
nearly one-third of those he fired were women and it is
perhaps plausible that women account for less than one-
third of the total number of recruits? Are “foreign ethnic”
recruits included in the “white” group or are they sepa-
rate? And, most fundamentally, how does this evidence
show that Tobias was ethnically motivated? Without
any context, these statistics are meaningless.
That leaves two allegations of ethnic discrimination by
Tobias: Peter’s own termination and the termination
of Wojciech Czarniecki, another probationary officer of
Polish descent. A different panel of this court has
affirmed the dismissal of Czarniecki’s discrimination
claim against the City. See Czarniecki v. City of Chicago, 633
F.3d 545 (7th Cir. 2011). And two alleged instances of
discrimination do not constitute a widespread pattern
or practice sufficient to subject the City to liability. See
Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th
Cir. 2010) (“[T]here is no clear consensus as to how fre-
quently such conduct must occur to impose Monell
liability, except that it must be more than one instance,
or even three.” (quotation marks and citation omitted));
Estate of Moreland v. Dieter, 395 F.3d 747, 760 (7th Cir.
2005) (“[Three] incidents do not amount to a widespread
practice that is permanent and well settled so as to con-
stitute an unconstitutional custom or policy about which
14 Nos. 09-2042 & 09-3796
the sheriff was deliberately indifferent.” (quotation
marks omitted)).
Peter also contends that Tobias was a final policy-
maker, but this assertion is counterfactual. Tobias’s
recommendations were reviewed by Bradford Woods,
the Chicago Police Department’s Personnel Division
Commander. Because Tobias’s decisions were subject to
review and implementation by a higher authority, he
cannot be a final policymaker for purposes of municipal
§ 1983 liability. See, e.g., Vodak v. City of Chicago, 639 F.3d
738, 748-49 (7th Cir. 2011); Gernetzke v. Kenosha Unified
Sch. Dist. No. 1, 274 F.3d 464, 469 (7th Cir. 2001). Peter
counters that the City’s approval of a decision or policy
made by someone else, even if that person is not himself
a policymaking official, is sufficient to subject the City
to liability. But to succeed on a “ratification” theory like
this, a plaintiff must establish that the “ratifying” authority
shared the unconstitutional motivation of the initial
decisionmaker. “ ‘[A] § 1983 claim . . . based on a ratifica-
tion theory must allege that a municipal official with final
policymaking authority approved the subordinate’s
decision and the basis for it.’ ” Darchak v. City of Chicago, 580
F.3d 622, 630 (7th Cir. 2009) (quoting Baskin v. City of Des
Plaines, 138 F.3d 701, 705 (7th Cir. 1998)) (alteration and
emphasis in Darchak); see also Rasche v. Vill. of Beecher, 336
F.3d 588, 598 n.11 (7th Cir. 2003). Peter has no evidence
suggesting that Woods shared Tobias’s alleged discrim-
inatory animus. Thus, the City cannot be held liable on a
ratification theory. The district court properly entered
summary judgment for the City.
Nos. 09-2042 & 09-3796 15
Peter also asks us to review the magistrate judge’s
order barring reinstatement as a remedy in his claim
against Tobias. 3 He maintains that Tobias’s presence in
the case is a mere “legal fiction” because the City has
defended and would indemnify him if necessary. He
insists that whatever relief was available against the City
should also be available against Tobias, even though he
sued Tobias in his personal capacity.
This argument wouldn’t get very far on the merits, but
we cannot consider it. Peter sought and obtained the
voluntary dismissal of his claim against Tobias. As we
have noted, this effort to manufacture finality, when
coupled with the expiration of the statute of limitations
on the claim against Tobias, is sufficient to establish
appellate jurisdiction over the merits dismissal of Peter’s
claim against the City, but it doesn’t supply jurisdiction
over an interlocutory order issued in connection with the
claim Peter voluntarily dismissed. See Chavez v. Ill. State
Police, 251 F.3d 612, 628 (7th Cir. 2001) (court “may not
review claims that were dismissed pursuant to plaintiffs’
request for voluntary dismissal” but could “review the
district court’s rulings with respect to the remainder of
plaintiffs’ claims”); Boland v. Engle, 113 F.3d 706, 714 (7th
Cir. 1997) (“[W]hen a district court grants voluntary
dismissal under Federal Rule of Civil Procedure 41(a), a
plaintiff normally has neither the reason nor the right to
3
Peter contends that the district court’s ruling also precluded
him from seeking a “front pay” remedy from Tobias. The
court’s order does not reference front pay.
16 Nos. 09-2042 & 09-3796
appeal the dismissal because the plaintiff has received
the relief it requested.”); Cauley v. Wilson, 754 F.2d 769,
770 (7th Cir. 1985) (“Generally, a plaintiff may not
appeal an order of voluntary dismissal without prejudice
because the dismissal is the relief that the plaintiff re-
quested.”).
In this situation, it makes no difference whether the
dismissal under Rule 41(a) was with or without prejudice.
See Cauley, 754 F.2d at 771 (Rule 41(a) dismissal without
prejudice); Chavez, 251 F.3d at 628 (Rule 41(a) dismissal
with prejudice). What matters is that when the district
court granted Peter’s motion for voluntary dismissal,
Peter received the precise relief he requested. Accord-
ingly, he may not appeal.4 See Latham v. United States, 527
F.3d 651, 652 (7th Cir. 2008) (“Section 1291 allows for
review only by persons aggrieved by final decisions.
Prevailing litigants—that is, those who received from the
district court whatever relief they requested—cannot
appeal under § 1291.”). To put it another way, the inter-
locutory order precluding Peter from seeking reinstate-
4
There is a narrow and rarely invoked exception to the general
rule that an order granting voluntary dismissal is not
appealable. If the district court imposes conditions on the
voluntary dismissal, and if those conditions amount to “legal
prejudice,” the plaintiff then may have grounds for appeal. See
Parker v. Freightliner Corp., 940 F.2d 1019, 1023 (7th Cir. 1991). But
“legal prejudice exists only when the grant of a dismissal
severely circumscribes the plaintiff’s ability to re-initiate his
lawsuit.” Id. at 1023-24. Peter does not argue that this excep-
tion applies here.
Nos. 09-2042 & 09-3796 17
ment as a remedy against Tobias became moot the
moment the claim was voluntarily dismissed. Peter was
free to sacrifice his claim against Tobias for the right to
take an immediate appeal of the court’s order dismissing
his claim against the City. But he cannot now obtain
review of an interlocutory order issued in connection
with the dismissed claim against Tobias.
B. Peter and Tadeusz’s Title VII Claims
In the second case before us, Peter and Tadeusz claim
they were the victims of employment discrimination in
violation of Title VII based on their Polish ethnicity. The
district court dismissed on res judicata grounds, con-
cluding that the claims were based on the same set of
facts that gave rise to each Palka’s individual § 1983 suit.
Res judicata is a rule “of public policy and of private
peace.” Hart Steel Co. v. R.R. Supply Co., 244 U.S. 294, 299
(1917). Where a final judgment has been rendered on the
merits of a claim, res judicata protects the finality of that
judgment and prevents parties from undermining it by
attempting to relitigate the claim. Res judicata promotes
predictability in the judicial process, preserves the
limited resources of the judiciary, and protects litigants
from the expense and disruption of being haled into court
repeatedly. Cf. C HARLES A LAN W RIGHT, ET AL., 18 F EDERAL
P RACTICE AND P ROCEDURE § 4403 (2d ed. 2002) (“The
central role of adversary litigation in our society is to
provide binding answers. We want to free people from
the uncertain prospect of litigation, with all its costs to
emotional peace and the ordering of future affairs.”).
18 Nos. 09-2042 & 09-3796
In federal court res judicata has three elements: (1) an
identity of parties; (2) a final judgment on the merits; and
(3) an identity of the cause of action (as determined by
comparing the suits’ operative facts). U.S. ex rel. Lusby v.
Rolls-Royce Corp., 570 F.3d 849, 851 (7th Cir. 2009). Where
it applies, res judicata prevents the relitigation of claims
already litigated as well as those that could have been
litigated but were not. Russian Media Grp., LLC v. Cable
Am., Inc., 598 F.3d 302, 310 (7th Cir. 2010).
This case is a quintessential example of claim splitting
in duplicative lawsuits, a litigation tactic that res judicata
doctrine is meant to prevent. Identity of the parties is
present because Peter sued the City in both his § 1983
and Title VII cases; likewise, Tadeusz sued the County
in Palka I and here. That the Palkas’ earlier suits
included additional parties (e.g., Tobias, the Cook County
Sheriff, etc.) is irrelevant. See Czarniecki, 633 F.3d at 549.
Moreover, there is an identity of the causes of action
because the Title VII claims are premised on the Palkas’
termination by their respective municipal employers—the
same transactions at issue in their § 1983 cases. Id. And
there was a final judgment on the merits in the § 1983
cases. Although Peter’s claim against Tobias was dis-
missed without prejudice, his claim against the City was
decided in the City’s favor on the merits. And Tadeusz’s
earlier claim against the County was dismissed with
prejudice. See Palka I, 623 F.3d at 455.
The Palkas offer three arguments for not applying res
judicata here, but none is persuasive. First, they argue
that the district court applied the incorrect test for deter-
Nos. 09-2042 & 09-3796 19
mining whether there is an identity of the causes of
action. The district court applied the “same transaction
test,” which inquires whether the two suits share the
same operative facts; the Palkas argue for application of
what they see as a looser “same evidence” test under
Illinois law. At issue here, however, is “whether an
earlier federal judgment has preclusive effect on a subse-
quent federal claim,” and federal res judicata principles
apply to this question. Czarniecki, 633 F.3d at 548 n.3.
Second, the Palkas argue that one or more of the excep-
tions to res judicata outlined in the Restatement (Second) of
Judgments applies here. In particular they rely on the
section of the Restatement that states that the rule against
claim splitting does not apply where “[t]he judgment in
the first action was plainly inconsistent with the fair
and equitable implementation of a statutory or constitu-
tional scheme, or it is the sense of the scheme that the
plaintiff should be permitted to split his claim.” R ESTATE-
MENT (S ECOND ) OF J UDGMENTS § 26(d). The Palkas raised
this argument for the first time in their reply brief; it is,
therefore, waived. Bodenstab v. Cnty. of Cook, 569 F.3d 651,
658 (7th Cir. 2009). The argument is also of doubtful
merit. The Palkas do not explain how the earlier judg-
ments are inconsistent with the fair and equitable imple-
mentation of Title VII. Indeed, we have held that Title VII
claims enjoy no special immunity from res judicata. See
Herrmann v. Cencom Cable Assocs., 999 F.2d 223, 225 (7th
Cir. 1993) (rejecting the EEOC’s argument for “narrow
construal of res judicata in Title VII cases on the ground
that application of the doctrine disrupts the administra-
tive procedures established by the statute”). Our decision
20 Nos. 09-2042 & 09-3796
in Herrmann makes clear that traditional res judicata
rules apply to Title VII claims.5 Id.
Finally, the Palkas argue—without citation to author-
ity—that as a practical matter it was impossible for them
to preserve their Title VII claims because they were
waiting for their right-to-sue letters from the EEOC. We
have repeatedly rejected this argument. See Czarniecki,
633 F.3d at 550-51; Brzostowski v. Laidlaw Waste Sys., Inc., 49
F.3d 337, 339 (7th Cir. 1995); Herrmann, 999 F.2d at 225. We
have held that a litigant in this position has at least five
options to preserve his claim: (1) he can “ask the EEOC or
its state counterpart to accelerate the administrative
process,” Herrmann, 999 F.2d at 225; (2) he can seek an
agreement with his former employer “not to plead the
statute of limitations,” id.; (3) he can “agree [with his
employer] to split a single claim into two or more suits,”
id.; (4) he can “delay[] the filing of [the] first suit” until the
last possible moment, Brzostowski, 49 F.3d at 339; or
(5) he can “request[] that the court postpone or stay the
first case” until he receives the right-to-sue letter, id.
The Palkas availed themselves of none of these options.
In rejecting the Palkas’ argument against res judicata,
the district court observed that the last of these op-
tions—seeking a stay of their § 1983 actions while
awaiting their right-to-sue letters—would have been a
viable way for the Palkas to avoid claim splitting. On
appeal the Palkas dismiss the court’s suggestion as a
5
The Palkas also invoke other res judicata exceptions out-
lined in the Restatement but fail to explain how they apply.
Nos. 09-2042 & 09-3796 21
“totally ridiculous statement.” They insist that “people
who practice law for a living know” that no judge
would ever allow such a stay. Insulting the court is never
appropriate; this kind of argument crosses the line. More-
over, in light of what we have said about seeking a stay
in this situation, the argument is baseless. See, e.g.,
Herrmann, 999 F.2d at 225 (A plaintiff who files some
claims to preserve them while exhausting Title VII ad-
ministrative remedies could ask the district court for a
stay and “would have a very strong case for doing so.”).
We will never know what might have happened had
the Palkas asked to stay their § 1983 cases until right-to-
sue letters were forthcoming. As things stand, they split
their claims and now ask us to refrain from applying
settled res judicata doctrine. We decline the invitation.
The district court was right to enter judgment for the
City and County on res judicata grounds.
A FFIRMED.
10-18-11