In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1342
T HOMAS A BNER,
Plaintiff-Appellant,
v.
ILLINOIS D EPARTMENT OF
T RANSPORTATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 7477—Ruben Castillo, Judge.
A RGUED S EPTEMBER 12, 2011—D ECIDED M ARCH 21, 2012
Before B AUER, R OVNER, and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. The Illinois Department of
Transportation (“IDOT” or the “Department”) fired
Thomas Abner for engaging in disruptive conduct.
After exhausting his state administrative remedies,
Abner filed this Title VII action contending that he was
actually discharged in retaliation for a charge of racial
discrimination he had filed against the Department
2 No. 11-1342
some years earlier. The district court dismissed the suit,
concluding that Abner’s claim of retaliation was pre-
cluded by a state court’s determination, on administra-
tive review of Abner’s termination, that his discharge
was supported by just cause. We agree and affirm.
Abner was hired by IDOT in 1989. In 2003, following
a number of prior disciplinary measures, the Depart-
ment sought to fire him for fighting in the workplace.
He was instead suspended for thirty days pursuant
to a “last chance” agreement between his union repre-
sentative and the Department that stated, among other
provisions, that he would be discharged should he
engage in similar behavior in the future. In July 2005,
Abner became involved in an altercation with a co-
worker and a supervisor at an IDOT worksite. Although
Abner denied that he made physical contact during
the dispute, the other two alleged that he pushed his
supervisor.
IDOT initiated discharge proceedings against Abner
based on this incident. Abner was given a notice
informing him that because he had “engaged in a verbal
altercation with [his] co-worker . . . during which [he]
pushed [his] supervisor,” he was being terminated for
violating IDOT’s policies forbidding violence and dis-
ruptive conduct in the workplace. R. 27-2 at 20. (The
2003 last-chance agreement was referenced by the notice
in a summary of Abner’s disciplinary history.) After a
formal charge to this effect was approved by Illinois’
Director of Central Management Services, which is re-
sponsible for enforcement of the State’s personnel code,
No. 11-1342 3
Abner invoked his right to an administrative hearing
before the Illinois Civil Service Commission. An admin-
istrative law judge (“ALJ”) conducted an evidentiary
hearing on the charge at which Abner was represented
by counsel. Following that hearing, the ALJ issued a
recommended decision agreeing that Abner had engaged
in an altercation but concluding that his discharge was
not warranted. The ALJ’s summary of the parties’ con-
tentions and the evidence presented at that hearing
indicates that although Abner disputed his employer’s
account of the altercation, including the allegation that
he had pushed his supervisor, he did not allege that
IDOT was seeking to discharge him in retaliation for a
racial discrimination charge he had filed in 2001. Based
on the testimony, the ALJ found that Abner had an ex-
change of words with his co-worker that “quickly
escalated into a shouting match complete with threats
and posturing that resulted in [his supervisor] getting
bumped by Abner.” R. 27-2 at 33. The judge noted that
“Abner, as the Lead Worker, had the responsibility to
prevent such an escalation. Having not only failed
that, but actually instigating the escalation, he must bear
responsibility for its occurrence. The conclusion is that
Abner’s conduct that day constituted a violation of
Section D ‘Disruptive Conduct’ [of IDOT’s Rules for
Employee Conduct].” R. 27-2 at 33 ¶ 5. However, in lieu
of discharge, the ALJ, who found that Abner’s physical
contact with his supervisor was merely incidental
and as such did not constitute workplace violence, R. 27-2
at 33-34, proposed that Abner be suspended for 90 days.
The Commission affirmed and adopted the ALJ’s rec-
4 No. 11-1342
ommended decision in full in a final order dated June
15, 2006.
IDOT sought administrative review of the Commis-
sion’s decision in the Circuit Court of Cook County,
challenging the Commission’s modification of the disci-
pline imposed for Abner’s misconduct from discharge
to suspension. Both sides filed briefs as to the propriety
of the reduced penalty. Abner, writing pro se, contended
that because he had not himself signed the last chance
agreement in 2003, and because he was not given
proper notice in 2005 that he was being charged with
engaging in workplace violence, his termination was
not warranted. Again, Abner made no allegation that
IDOT’s effort to discharge him was retaliatory. R. 27-
2 at 93-99. On December 8, 2006, Circuit Court Judge
Dorothy Kinnaird issued an order overturning the Com-
mission’s decision insofar as it reduced Abner’s penalty
to a suspension. Reasoning that “the finding of disrup-
tive conduct is sufficient cause for discharge under pro-
gressive discipline,” the court sustained IDOT’s decision
to discharge Abner from its employ. R.27-2 at 110.
Abner did not appeal the state court’s judgment.
Three years later, after obtaining a right to sue letter
from the U.S. Equal Employment Opportunity Commis-
sion, Abner filed a pro se complaint in federal court
alleging that the true reason IDOT fired him was because
he had previously accused the Department of racial
discrimination in a complaint he filed with the Illinois
Department of Human Rights in 2001, which if true
made his discharge unlawful under Title VII’s anti-retal-
No. 11-1342 5
iation provision, 42 U.S.C. § 2000e-3(a). The district
court appointed counsel to represent Abner. IDOT then
moved to dismiss the complaint, contending among
other things that the complaint was barred by the
doctrine of res judicata. After reviewing the memo-
randa and entertaining oral argument from counsel, the
court entered an order dismissing the case, rea-
soning principally that Judge Kinnaird’s order finding
that Abner’s discharge provided sufficient cause for
his discharge under IDOT’s progressive disciplinary
system precluded Abner from attempting to relitigate
the validity of his discharge in federal court. R. 30 at 1.
The court subsequently denied Abner’s motion for recon-
sideration “for all the reasons contained in this Court’s
Order of 7/29/10 [dismissing the complaint], as well as,
the reasons stated in the Defendant’s response [32]
to said motion,” and dismissed the case with prejudice.
R. 34.
Abner contends that the district court’s res judicata
rationale was flawed.1 He argues first that his retaliation
claim does not arise from the same set of operative facts
as the claim he made in the state court. The state litiga-
tion, he reasons, was focused on the incident in 2005
with his co-worker and supervisor, whereas the federal
claim he makes here is focused on the racial discrimina-
1
No argument is made that the district court erred in not
converting the motion to dismiss into one for summary judg-
ment pursuant to Federal Rule of Civil Procedure 12(d),
given that the court relied on documents not attached to
Abner’s complaint.
6 No. 11-1342
tion claim he filed in 2001 and whether that claim
animated IDOT’s decision to fire him in 2005. Second,
Abner asserts that he was not afforded a full and fair
opportunity to litigate his retaliatory discharge claim
in the state case. Specifically, “[p]laintiff was not dis-
charged until resolution of the state court proceeding
in December of 2006. It is logically impossible to bring
a retaliatory discharge claim until a party has actually
been discharged.” Abner Br. 16 (emphasis in original).
We believe, however, that the district court properly
deemed Abner’s retaliatory discharge claim precluded
by the state court judgment sustaining his discharge.
At issue in the state administrative proceeding was
whether IDOT had just cause to discharge Abner. Abner’s
present contention that IDOT fired him in retaliation
for his prior charge of race discrimination is, in essence,
an assertion that the Department’s stated reason for
his termination—disorderly conduct—is a pretext for
discrimination. As such, it could have been raised as a
defense in the administrative proceeding. It was not,
however, and consequently the state court judgment
deeming his discharge warranted by just cause
precludes the retaliation claim he now asserts under
Title VII.
The judgment of a state court sitting in review of an
administrative agency is entitled to full faith and credit in
federal court. 28 U.S.C. § 1738; Kremer v. Chem. Constr.
Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897-98
(1982). This means, among other things, that such a
judgment will have the same preclusive effect in sub-
No. 11-1342 7
sequent litigation as any other judgment rendered by a
state court, subject to the law of the state where the judg-
ment was rendered. Ibid. If, under that state’s law, a
prior judgment would be deemed preclusive, and if
the party against whom preclusion is sought enjoyed a
full and fair opportunity to raise his federal claim in
the state proceeding, then a federal court must grant the
state judgment preclusive effect. Ibid.
Our decision in Welch v. Johnson, 907 F.2d 714 (7th
Cir. 1990), concluded that a former state employee’s
charges of workplace discrimination under Title VII and
42 U.S.C. § 1983 were barred by an Illinois state court
judgment finding just cause in support of her discharge.
Welch filed a federal lawsuit under section 1983
(later amended to invoke Title VII as well) in which she
alleged, among other things, that her state employer
had subjected her to a series of adverse employment
actions which she characterized as an effort to harass
her in retaliation for a discrimination complaint she
had filed with the Illinois Department of Human Rights.
Shortly after she filed the federal suit, Welch’s employer
fired her, citing the same sorts of grounds as it had for
the prior actions that Welch alleged in the federal suit
were retaliatory. She then initiated an administrative
proceeding challenging her dismissal with the Illinois
Civil Service Commission; but in the course of that pro-
ceeding, she did not contend that her discharge or any
of the events leading up to it constituted harassment
or retaliation for her previous discrimination com-
plaint. The Civil Service Commission found that just
cause supported her discharge, and the state court
8 No. 11-1342
on review concluded that the Commission’s determina-
tion was consistent with the manifest weight of the evi-
dence.
Applying Illinois res judicata principles, we con-
cluded that the state court’s decision sustaining Welch’s
discharge foreclosed her federal claims of retaliation. The
Illinois Supreme Court, we noted, deems a prior judg-
ment conclusive not only to matters that were actually
determined in the action resulting in that judgment,
but also as to other matters that could have been raised
and determined. 907 F.2d at 720 (ultimately quoting
Hughey v. Indus. Comm’n, 394 N.E.2d 1164, 1166 (Ill. 1979)).
That rule applies to every question relevant to and
falling within the purview of the original action, in-
cluding any defense that could have been raised with
due diligence. Id. (ultimately quoting Hughey). The al-
legations underlying Welch’s federal claims could
have been raised as a defense to the propriety of her
discharge; specifically, Welch could have contended
that the cited grounds for her termination were a
pretext for harassment and discrimination. Id. at 721.
In that sense, “the proof required from Ms. Welch in
the state and federal section 1983 actions was essentially
the same,” and the two suits therefore constituted the
same cause of action. Id. Viewed another way, both
the federal suit and the state administrative proceeding
arose out of the same transaction, namely the series of
events culminating in her discharge. Id. at 722. Whether
her employer had legitimate reasons to fire Welch, or
whether it was discriminating against her in retaliation
for her previous complaint, were thus “merely different
No. 11-1342 9
factual sides of the same coin.” Id.2 And because the
case law left no doubt that the state civil service com-
mission could have entertained Welch’s allegations of
harassment and retaliation, we were satisfied that she
had had a full and fair opportunity to pursue those al-
legations in the state proceeding. Id. at 723-26. It was
thus appropriate to deem the state judgment as preclu-
sive of her retaliatory discharge claim. See also Hayes v.
City of Chicago, No. 10-3750, 2012 WL 661676, at *3 (7th
Cir. Mar. 1, 2012) (state court’s affirmance of police
board order that resulted in plaintiff’s termination pre-
cluded his subsequent Title VII claim alleging that
his discharge constituted racial discrimination: “Hayes
could have rebutted the Police Board’s discharge order
with evidence that he was unlawfully terminated based
on his race.”); Garcia v. Village of Mt. Prospect, 360 F.3d
630, 637-38 (7th Cir. 2004) (plaintiff’s federal claims
under Title VII and 42 U.S.C. §§ 1981 and 1983, alleging
that police pension board’s denial of disability pension
benefits constituted retaliation and employment discrimi-
nation, amounted to same cause of action as his state-
2
As we noted in Garcia v. Village of Mt. Prospect, 360 F.3d 630,
637 (7th Cir. 2004), the Illinois Supreme Court, subsequent to
our decision in Welch, adopted the transactional approach to
determining whether two causes of action are the same
for purposes of res judicata. River Park, Inc. v. City of Highland
Park, 703 N.E.2d 883, 893 (Ill. 1998). This was the second of
the two approaches we had discussed in Welch. See also Arlin-
Golf, LLC v. Village of Arlington Heights, 631 F.3d 818, 822 (7th
Cir. 2011).
10 No. 11-1342
court administrative appeal of pension board’s adverse
decision; res judicata therefore barred federal suit); Licari
v. City of Chicago, 298 F.3d 664, 665-66 (7th Cir. 2002) (state
court’s affirmance of denial of disability benefits
precluded section 1983 claim that denial violated due
process); Durgins v. City of E. St. Louis, Ill., 272 F.3d 841,
843-44 (7th Cir. 2001) (state court review of administra-
tive decision sustaining police officer’s discharge pre-
cluded section 1983 claim that discharge violated his
First Amendment right to free speech); Davis v. City of
Chicago, 53 F.3d 801, 802-03 (7th Cir. 1995) (proceedings
before city personnel board and in judicial review
thereof as to validity of plaintiff’s suspension and dis-
charge precluded subsequent claim under section 1983
for lost opportunities for overtime and promotion); Pirela
v. Village of N. Aurora, 935 F.2d 909, 912 (7th Cir. 1991)
(state administrative review of discharge proceedings
before local board of police and fire commissioners pre-
cluded subsequent Title VII claim that discharge consti-
tuted race and national origin discrimination); Button
v. Harden, 814 F.2d 382, 384-85 (7th Cir. 1987) (admin-
istrative review of teacher’s discharge precluded subse-
quent suit under section 1983 contending discharge
violated teacher’s First Amendment rights), abrogated
on other grounds by Spiegla v. Hull, 371 F.3d 928 (7th
Cir. 2004); cf. Manley v. City of Chicago, 236 F.3d 392, 397
(7th Cir. 2001) (finding that discharged police officer’s
federal claims for denial of due process and equal pro-
tection were barred by Rooker-Feldman doctrine because
his alleged injury stemmed directly from state court
judgment upholding administrative board’s decision to
No. 11-1342 11
terminate him); Durgins, 272 F.3d at 844 (charac-
terizing Manley as “a preclusion decision in Rooker-
Feldman clothing”).
The same logic applies here. The premise of Abner’s
Title VII suit is that he was fired in retaliation for
having previously filed a complaint with the Illinois
Department of Human Rights in 2001. But the propriety
of his 2005 discharge was litigated in state court: At the
final stage of Illinois’ scheme of administrative review,
Judge Kinnaird upheld IDOT’s decision to discharge
Abner based on his disruptive conduct in July 2005.
Her ruling necessarily established that IDOT had a legiti-
mate, non-retaliatory ground for firing Abner. Abner
draws a false distinction when he suggests that the
state proceeding concerned the events of 2005 which
culminated in his discharge, whereas the federal suit
has to do with the discrimination complaint that he
filed in 2001. As Welch makes clear, the two proceedings
implicate two sides of the same coin: Either the true
reason for Abner’s discharge was his disruptive conduct
in 2005 (which was a legitimate, non-discriminatory
ground for his termination) or this was a mere pretext
for punishing him for his 2001 complaint. 907 F.2d at 722.
Only one of these can be true. Welch also makes clear
that Abner could have raised, in the state administra-
tive proceeding, his contention that IDOT was retaliating
against him in seeking his dismissal. This would have
been a defense to the charge that IDOT had good cause
to fire him. Id. at 723-26. Abner’s contention that he
could not challenge his discharge as retaliatory until
the administrative proceeding had reached its conclu-
12 No. 11-1342
sion in 2006 and he actually was terminated is simply
wrong. IDOT’s decision to fire Abner is what triggered
the administrative proceeding, and the determination
whether the Department had good cause to fire him was
the focus, if not the entire point, of that proceeding. See
Davis, 53 F.3d at 803. The record makes clear that Abner
was represented by counsel at the hearing before the
ALJ, when the factual basis for the Civil Service Com-
mission’s and the circuit court’s decisions was devel-
oped. And although Abner evidently proceeded pro se
in the circuit court, the brief he filed reveals him
to have been perfectly capable of contesting the validity
of IDOT’s decision to discharge him. In short, nothing
hindered him from raising the contention that IDOT
was retaliating against him for his earlier complaint. Cf.
Jones v. City of Alton, Ill., 757 F.2d 878, 882-83, 886-87 (7th
Cir. 1985) (refusing to grant preclusive effect to state
court decision upholding plaintiff’s discharge, where
local civil service commission, in evident aberration,
had excluded plaintiff’s claims of discrimination and
thus denied him full and fair opportunity to litigate
those claims in state proceedings) (cited in Welch, 907
F.2d at 724-25). Abner thus had a full and fair oppor-
tunity to litigate the propriety of his discharge in state
court, and having failed to do so, he is barred from re-
litigating the grounds for his discharge in federal court
under the guise of Title VII.
We therefore A FFIRM the district court’s judgment. In
our summary of the proceedings that took place below,
we noted that the district court denied Abner’s motion
for reconsideration and dismissed the case with preju-
No. 11-1342 13
dice “for all the reasons contained in this Court’s Order
of 7/29/10 [dismissing the complaint], as well as, the
reasons stated in the Defendant’s response . . . to
said motion.” R. 34. We take the opportunity to gently
reiterate that Circuit Rule 50 requires a district court to
articulate its reasons for dismissing a claim or granting
summary judgment, and summarily adopting the
reasons set forth in a party’s memorandum as the
court’s own rationale does not comply with this require-
ment. Pasquino v. Prather, 13 F.3d 1049, 1051 & n.3 (7th
Cir. 1994); Johnson v. McCann, 292 F. App’x 516, 517
(7th Cir. 2008) (coll. cases) (non-precedential decision).
3-21-12