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Employment – retaliation — res judicata

United States Court of Appeals, 7th Circuit

Civil

Employment – retaliation — res judicata

Where an employee, fired for engaging in disruptive conduct, exhausts his state administrative remedies, and subsequently files a Title VII retaliation action based on a charge of racial discrimination he had filed against the Department several years earlier, the district court correctly concluding that the retaliation claim was precluded by a state-court determination on administrative review of the termination, and dismissal was appropriate.

“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 legitimate, 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 [v. Johnson, 907 F.2d 714 (7th Cir. 1990)] 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 administrative 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 conclusion 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 Commission’s and the circuit court’s decisions was developed. 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.”

Affirmed.

11-1342 Abner v. Illinois Dept. of Transportation

Northern District of Illinois, Eastern Division, Castillo, J., Rovner, J.


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