Czarniecki v. City of Chicago

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