Linda Reed v. State of Illinois

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1745

LINDA REED,

Plaintiff-Appellant,

v.

STATE OF ILLINOIS, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 7274 — Amy J. St. Eve, Judge.

____________________

ARGUED SEPTEMBER 21, 2015— DECIDED OCTOBER 30, 2015

____________________

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

POSNER, Circuit Judge. The plaintiff was diagnosed with a

rare neurological disorder called tardive dyskinesia in April

2011. According to the National Alliance on Mental Illness,

Tardive dyskinesia (TD) is one of the most dis-

turbing potential side effects of antipsychotic medica-

tions. Tardive (late) dyskinesia (bad movement) is a

movement disorder that occurs over months, years

2 No. 14-1745

and even decades. TD is a principle [sic—should be

principal] concern of first generation antipsychotic

medication but has been reported in second genera-

tion antipsychotic medication and needs to be moni-

tored for all people who take these medications. TD is

one of a group of side effects called ‘extrapyramidal

symptoms’ that includes akathesia (restlessness), dys-

tonia (sudden and painful muscle stiffness) and Par-

kinsonism (tremors and slowing down of all body

muscles). TD is perhaps the most severe of these side

effects and does not occur until after many months or

years of taking antipsychotic drugs. TD is primarily

characterized by random movements of different

muscles within the body and can occur in the tongue,

lips or jaw (e.g., facial grimacing), or consist of pur-

poseless movements of arms, legs, fingers and toes. In

some severe cases, TD can include swaying move-

ments of the trunk or hips or affect the muscles asso-

ciated with breathing. TD can be quite embarrassing

and—depending on its severity—can be disabling as

well. National Alliance on Mental Illness, “Tardive

Dyskinesia,” www2.nami.org/Content/Navigation

Menu/Inform_Yourself/About_Mental_Illness/By_

Illness/Tardive_Dyskinesia.htm (visited October 29,

2015).

It is not a conventional speech impediment, such as stam-

mering, or speaking hoarsely or with a lisp.

The plaintiff’s complaint confirms that she experiences

the typical symptoms of tardive dyskinesia, and we take the

allegations in her complaint to be true because she’s appeal-

ing from the district court’s grant of the defendants’ motion

No. 14-1745 3

to dismiss her suit. Her involuntary movements include

tongue thrusting, pursing of the lips, choking, and side-to-

side chewing of the jaw. She becomes mute, screams or

makes non-verbal sounds, particularly under stress. She of-

ten cannot use a telephone without assistive technology. She

has also been diagnosed with post-traumatic stress disorder

and bipolar disorder, which can cause her severe anxiety.

The impairments we’ve listed (all drawn from as yet unchal-

lenged allegations) substantially limit her in the major life

activities of concentrating, thinking, communicating, speak-

ing, interacting with others, mobility, and work. The state

acknowledges in its brief that “with stress, Plaintiff’s condi-

tion worsens and she may become mute, scream, or make

non-verbal sounds.” It notes that her “involuntary move-

ments include tongue-thrusting, lip-pursing, choking, side-

to-side chewing and (especially when under stress) head

movements and finger-tapping.”

Shortly after the plaintiff was diagnosed with tardive

dyskinesia, a personal injury suit that she had filed in the

Circuit Court of Cook County, Illinois—Reed v. Moore, No. 09

M1 301249—went to trial. She had no lawyer. Before the trial

began she asked the court’s disability coordinator for ac-

commodations of her medical problems, and in response to

her request she was permitted to have a friend and a family

member take notes for her, was given a podium to stand at,

and was allowed to take occasional recesses. But she was

denied other help that she requested—a microphone (to en-

able her to project her voice so that it would be audible even

when her ability to vocalize was impaired by her tardive

dyskinesia), an interpreter (to articulate her thoughts when

she could not express them clearly herself), and a jury in-

struction explaining her disorder, lest the jurors think she

4 No. 14-1745

was just acting up. Her difficulty in speaking was likely to

be amplified by her having to speak to an entire courtroom.

We don’t know the size of the courtroom, but even if it was

small a person has to “speak up” when speaking to an entire

room, rather than to another person face to face. Without the

microphone and the interpreter, she sometimes had to resort

to hand signals, grunts, and other non-verbal attempts at

communication that were difficult to understand. The need

for an interpreter, a “mouthpiece” in almost a literal sense,

was related to the need for a microphone. She could have

whispered inarticulately to an interpreter, who if experi-

enced in helping persons with a speech disability to express

themselves could articulate the plaintiff’s words in normal

speech that the judge and jury would understand without

strain.

Apart from being denied these aids, she was hectored by

the judge, who may not have understood the gravity of her

disorder. The judge told the jury that the plaintiff has a

“speech impediment,” but that made it sound as if she

stammers or has a lisp, and thus understated the gravity of

her disability. The judge knew or should have known that it

was her condition, rather than willful defiance of courtroom

proprieties, that was responsible for the long, involuntary

pauses in her statements; yet he kept telling her to “hurry

up,” to move on to the “next question,” and to wrap up her

examination of witnesses. He permitted her only 10 minutes

to examine a particular witness. At one point during the

plaintiff’s cross-examination by the defendant’s lawyer the

judge said “I have been waiting ten seconds for you to an-

swer and am moving on to the next thing.” He also at times

yelled at her, glared at her, smacked his bench, leaned for-

No. 14-1745 5

ward, and otherwise expressed annoyance with her—all in

front of the jury.

She suffered other embarrassments in front of the jury.

For example, a piece of gum that she was chewing to control

her involuntary movements fell out of her mouth, an acci-

dent for which the judge scolded her, precipitating a convul-

sive state in her.

The judge’s treatment of her at the trial is surprising in

light of his statement made after the trial in denying her mo-

tion for a new trial that “almost immediately before the ac-

tual trial, the plaintiff began to experience a rapid and no-

ticeable diminishment [sic—he meant ‘diminution’] of

speech ability so that her speaking was interrupted by un-

controllable pauses on account of an apparent nervous dis-

order that forced her into involuntary contortions of the

mouth and unintended utterances, most of which consisted

of unintelligible sounds. However, she at all times presented

as having been fully mentally capable and alert, physically

able except for the speech condition, and clearly frustrated

whenever she experienced such interruptions” (emphasis

added). We’ve italicized the most puzzling phrase in the

quoted passage. Ability to speak was the critical physical

ability that the plaintiff needed in order to litigate a jury

case; without that ability, being “fully mentally capable and

alert” couldn’t do much for her.

The jury returned a verdict for the defendant. The plain-

tiff filed a post-trial motion, asking for a new trial on the

ground (among other grounds) that she was disabled within

the meaning of the Americans with Disabilities Act yet had

been denied reasonable accommodations for her disability.

The judge denied the motion, on grounds suggestive of a

6 No. 14-1745

failure to understand the plaintiff’s problems in communi-

cating. True, he said he was denying oral argument on her

post-trial motion “because the plaintiff has developed a se-

vere speech impediment that prevents her from communi-

cating in any vocal fashion.” Yet inconsistently he said in

reference to the trial, held just a few months earlier, that the

plaintiff’s “readily observable speech impediment concern

was accommodated, and that she was thus fully afforded a

fair and adequate opportunity to present her case.” If she

was incapable of “communicating in any vocal fashion” with

regard to her post-trial motion, how can she not have need-

ed a microphone and interpreter at the trial to help her over-

come her “readily observable speech impediment?”

In denying the post-trial motion the judge also remarked

that “there were occasions [during the trial] when her pauses

were so lengthy that the court [that is, he, the judge] con-

cluded that she was being indecisive rather than laboring

under the impediment, and she was asked to move on, as

would any other individual.” He failed to note that there is

no contradiction between being indecisive and suffering

from tardive dyskinesia—indeed it would be difficult for

someone suffering from that disorder to speak consistently

in a decisive fashion. Furthermore, she was not “any other

individual.” An unimpaired person could indeed be asked

to “move on,” and be expected to obey, but the plaintiff

could not be expected to be consistently responsive to such a

command, based as it was on the unlikely assumption that

her pausing was voluntary. It would have been prudent for

the judge, having no reason to think himself qualified to dis-

tinguish between pauses attributable to normal and there-

fore censurable indecisiveness and pauses attributable to a

serious neurological disorder, to have invited a medical ex-

No. 14-1745 7

pert or at least the court’s disability coordinator to advise

him on the effect of the plaintiff’s condition on her ability to

litigate her case.

The plaintiff appealed to the Illinois appellate court,

which affirmed the jury’s verdict in a nonprecedential order.

Reed v. Moore, 2012 IL App (1st) 113442-U (Ill. App. 2012).

The order does not mention her disability, apparently be-

cause, still proceeding pro se, she pitched her appeal entirely

on grounds relating to jurisdiction, discovery, and other

matters all unrelated to her disability, although her opening

brief had remarked that she was “disabled” and had been

“denied reasonable accommodations” by the trial judge.

Shortly before the appellate court handed down its deci-

sion, she filed the present suit in the federal district court in

Chicago. In it she complained that the Cook County Circuit

Court had failed to accommodate her tardive dyskinesia, in

violation of Title II of the Americans with Disabilities Act, 42

U.S.C. § 12131 et seq., and section 504 of the Rehabilitation

Act, 29 U.S.C. § 794, both of which create federal remedies

for disability discrimination by state and local government

agencies, such as the Illinois courts. Of particular relevance

to this case, a regulation under the Americans with Disabili-

ties Act provides that “a public entity shall take appropriate

steps to ensure that communications [with disabled persons]

… are as effective as communications with others,” and “a

public entity [which of course a court is] shall furnish ap-

propriate auxiliary aids and services where necessary to af-

ford individuals with disabilities … an equal opportunity to

participate in, and enjoy the benefits of, a service, program

or activity of a public entity.” 28 C.F.R. §§ 35.160(a)(1), (b)(1)

(emphasis added).

8 No. 14-1745

The response of the defendants (which include the State

of Illinois, the Cook County Circuit Court, the trial judge,

and other officials) to the federal suit was that Illinois’s doc-

trine of collateral estoppel, which (the parties agree) is appli-

cable to the suit, bars the discrimination claim because it had

been presented and rejected by the Illinois circuit court in a

decision affirmed by the Illinois appellate court. The district

court agreed and so dismissed the suit for failure to state a

claim.

“The minimum threshold requirements for the applica-

tion of [Illinois] collateral estoppel … are: (1) the issue decid-

ed in the prior adjudication is identical with the one present-

ed in the suit in question, (2) there was a final judgment on

the merits in the prior adjudication, and (3) the party against

whom estoppel is asserted was a party or in privity with a

party to the prior adjudication. … [Also,] a decision on the

issue must have been necessary for the judgment in the first

litigation, and the person to be bound must have actually

litigated the issue in the first suit. [But] even where the

threshold elements of the doctrine are satisfied and an iden-

tical common issue is found to exist between a former and

current lawsuit, collateral estoppel must not be applied to

preclude parties from presenting their claims or defenses un-

less it is clear that no unfairness results to the party being

estopped.” Talarico v. Dunlap, 685 N.E.2d 325, 328 (Ill. 1997).

In other words “collateral estoppel is a flexible doctrine

which defies rigid or mechanical application. The question

of whether a party has had a full and fair opportunity to

contest a prior determination cannot be reduced to a simple

formula.” Id. at 329–30. To the same effect see Nowak v. St.

Rita High School, 757 N.E.2d 471, 478 (Ill. 2001); American

No. 14-1745 9

Family Mutual Ins. Co. v. Savickas, 739 N.E.2d 445, 451 (Ill.

2000).

The threshold requirements of collateral estoppel under

Illinois law have been met: the plaintiff’s challenge to the

adequacy of the accommodation that the circuit court made

to her disability and the challenge in the district court to that

adequacy are essentially the same, and the plaintiff had an

opportunity to obtain appellate review of the circuit court’s

ruling on the adequacy of the accommodations she had re-

ceived at the trial. But remember that even when these es-

sential conditions of collateral estoppel are satisfied, the doc-

trine, as understood in Illinois, is not to be applied “unless it

is clear that no unfairness results to the party being es-

topped.” Talarico v. Dunlap, supra, 685 N.E.2d at 328.

Admittedly terms like “fair” and “unfair,” if left unde-

fined, as so often they are, lack precision, yet they cannot be

ignored when, as in the Illinois law of collateral estoppel,

they are elements of legal doctrine. What is unfair in the pre-

sent context is to deny, without a good reason, a party’s

right to press a potentially winning argument. A “desire not

to deprive a litigant of an adequate day in court” is a proper

consideration in deciding whether to invoke collateral es-

toppel, Restatement (Second) of Judgments § 27, comment c

(1982), and one reason a litigant may not have had an ade-

quate day in court is that he or she was “laboring under a

mental or physical disability that impeded effective litiga-

tion.” Id., § 28, comment j. The circuit court judge had ruled

that the plaintiff was incapable of advocating her post-trial

motion orally and, as we said earlier, this suggests that she

probably was incapable of conducting her trial as well.

10 No. 14-1745

A good reason for according finality to the ruling in a

previous case is that the party made the same argument in

that case and it was rejected on a sound ground. That is not

this case. In the plaintiff’s personal-injury suit, she was in no

position, being pro se and seriously disabled, to establish the

applicability to her case of the federal laws against disability

discrimination. She knew she needed help to litigate her per-

sonal-injury suit, especially having no lawyer. And so she

asked for help. Many of her requests were ignored or denied

by the judge, who was at times impatient with and even

rude to her; and his conclusion that her disability had been

adequately accommodated was untenable. There was noth-

ing “fair” in his bestowal of inadequate accommodations, or

in his conclusion, in the very ruling on her post-trial motion

in which he adjudged her incompetent to make an oral

presentation, that the accommodations provided for her at

trial had been adequate. She was denied a full and impartial

opportunity to litigate the accommodations issue when the

judge refused to grant her oral argument, on account of her

disability, and she had no lawyer to argue in her place. Apt

is the observation of the Supreme Court in Tennessee v. Lane,

541 U.S. 509, 531 (2004), that Title II of the ADA was passed

in part to provide equal access to courts for the disabled:

“The unequal treatment of disabled persons in the admin-

istration of judicial services has a long history, and has per-

sisted despite several legislative efforts to remedy the prob-

lem of disability discrimination.”

There is a further objection to the invocation of collateral

estoppel in this case. At her trial in state court the plaintiff

knew that she needed accommodations to her disability in

order to be able to litigate her case. And she knew there was

a disability coordinator to whom she could appeal. But she

No. 14-1745 11

asserted no federal statutory entitlement to accommodation

before or during her trial, and while she did invoke the

Americans with Disabilities Act in her post-trial motions she

mentioned neither the Rehabilitation Act nor the highly per-

tinent (“equal opportunity”) regulation under the ADA that

we quoted earlier in this opinion. Furthermore, although

federal law forbids discrimination against disabled persons,

the trial judge did not consider whether the plaintiff had

been discriminated against, that is, had been treated worse

in the litigation than a nondisabled person would have been.

He considered only the adequacy of the accommodations

made for her disability at the state-court trial. The post-trial

proceeding conducted by the state-court trial judge thus lim-

ited the plaintiff to a truncated version of her disability claim

(a version that ignored her right to an opportunity equal to

that of a nondisabled person to litigate her claim), while the

present, federal litigation encompasses the full range of is-

sues concerning the scope and application of federal disabil-

ity law to her plight.

And to top it all, it appears on the basis of an inquiry of

the state court by staff of the Clerk of our court that there is

no transcript of the state-court trial because there was nei-

ther a court reporter nor a recording device in the court-

room—an absence that prevents verification of the state

judge’s assertions that the limited accommodations that he

had given Reed had been adequate to enable her to litigate

effectively—assertions such as that she was “always allowed

wide latitude in the presentation of her case” and that he

had “overruled many procedural objections by the defense

in order to accommodate her condition.”

12 No. 14-1745

“[O]nce a person has been afforded a full and fair oppor-

tunity to litigate a particular issue, that person may not be

permitted to do so again,” Gramatan Home Investors Corp. v.

Lopez, 386 N.E.2d 1328, 1331 (N.Y. 1979), and thus a “court

determining whether estoppel should apply must balance

the need to limit litigation against the right to an adversarial

proceeding in which a party is accorded a full and fair op-

portunity to present his case.” American Family Mutual Ins.

Co. v. Savickas, supra, 739 N.E.2d at 451. For one court (the

state court) to deny accommodations without which a disa-

bled plaintiff has no chance of prevailing in her trial, and for

another court (the federal district court) on the basis of that

rejection to refuse to provide a remedy for the discrimination

that she experienced in the first trial, is to deny the plaintiff a

full and fair opportunity to vindicate her claims.

Finally, citing Stanek v. St. Charles Community Unit School

District No. 303, 783 F.3d 634, 644 (7th Cir. 2015), the defend-

ants argue on appeal that the state appellate court and its

chief judge are the only proper defendants. The district court

had no opportunity to consider this argument, so it remains

for consideration on remand.

REVERSED AND REMANDED

No. 14-1745 13

SYKES, Circuit Judge, dissenting. My colleagues have con-

cluded that although the threshold elements of collateral

estoppel are satisfied here, the state judge’s ruling on the

accommodation issue cannot be given preclusive effect

because it was unfair. I respectfully disagree.

In April 2011 plaintiff Linda Reed was diagnosed with

tardive dyskinesia, a disabling movement disorder described

at length in the majority opinion. At the time of her diagno-

sis, Reed had a personal-injury case pending in Cook County

Circuit Court. She was representing herself. Because her

disability affects oral communication and sometimes mani-

fests startling symptoms, she asked for six specific accom-

modations to assist her in presenting her case to the jury:

(1) a note taker; (2) a podium; (3) recesses as needed; (4) an

interpreter; (5) a microphone; and (6) an instruction explain-

ing her disability to the jurors so they would understand her

symptoms.

The judge granted the first three requests. Reed was

permitted to have a friend and a family member at counsel

table to help her organize her presentation; she was provid-

ed a podium; and the judge allowed recesses when she

needed a break. Although the judge did not instruct the jury

about the specifics of her disability, he didn’t entirely ignore

her request for a jury instruction. Rather, during jury selec-

tion, he informed the prospective jurors that Reed had a

speech impediment (that’s how she herself had described it),

and he questioned them about their ability to disregard the

impairment and fairly decide the case. Also, at several points

during the course of the trial, the judge reminded the jurors

not to hold Reed’s condition against her. So only two of

14 No. 14-1745

Reed’s six accommodation requests were denied outright:

the court did not provide a microphone or an interpreter.

After the jury returned a defense verdict, Reed moved for

a new trial arguing (among other things) that she was a

person with a disability under the Americans with Disabili-

ties Act and that the court had failed to adequately accom-

modate her disability. Before the motion could be heard,

however, Reed’s condition deteriorated. She could not travel

to Chicago for a hearing on the motion (she lives in Milwau-

kee), and she was unable to participate over the phone, as

she had done for pretrial conferences. Accordingly, the judge

decided the motion on the papers, explaining in his written

order that he opted to proceed without oral argument

because Reed’s “severe speech impediment … prevents her

from communicating in any vocal fashion.” Importantly,

Reed’s inability to orally communicate arose after trial, not

before or during trial.

The judge denied Reed’s motion for a new trial. Address-

ing her failure-to-accommodate claim, the judge wrote as

follows (and I include his entire analysis because my col-

leagues have attacked it as unfair):

The plaintiff finally contends that she was

not afforded an accommodation of a physical

disability. The plaintiff has been a resident of

Milwaukee, Wisconsin during all phases of this

litigation. In order to allow for her full and

meaningful participation, she was allowed to

participate by telephone in almost all of the

pre-trial hearings. This process worked well,

and the parties were always able to fully en-

gage in argument on their pre-trial issues. Dur-

No. 14-1745 15

ing each of these sessions, the plaintiff always

argued her positions thoughtfully and with

appropriate levels of forcefulness. Even in spite

of sometimes sharp exchanges, she was always

cordial to both counsel and the court. Almost

immediately before the actual trial, the plaintiff

began to experience a rapid and noticeable di-

minishment of speech ability so that her speak-

ing was interrupted by uncontrollable pauses

on account of an apparent nervous disorder

that forced her into involuntary contortions of

the mouth and unintended utterances, most of

which consisted of unintelligible sounds.

However, she at all times presented as having

been fully mentally capable and alert, physical-

ly able except for the speech condition, and

clearly frustrated whenever she experienced

such interruptions. It was necessary to take

several steps to accommodate her obvious

speech challenge. To begin with, she was al-

lowed to have an additional person at counsel

table to assist her in organizing her volumi-

nous materials during the trial. The prospec-

tive jurors were asked whether the plaintiff’s

impediment would prevent them from giving

the parties a fair trial, and the sworn jury was

reminded several times not to hold her condi-

tion against her or the defendant. There were

frequent recesses so that the plaintiff could

drink water and otherwise comfort herself, and

the court was always mindful of her physical

challenge to simply speak as she intended.

16 No. 14-1745

There were occasions when her pauses were so

lengthy that the court concluded that she was

being indecisive rather than laboring under the

impediment, and she was asked to move on, as

would any other individual. At those times,

she appeared able to fully respond and pro-

ceed in a most functional manner. This court

was never of the view that the plaintiff ever la-

bored under any court-induced feeling of be-

ing intimidated. She was always allowed wide

latitude in the presentation of her case. The

court overruled many procedural objections by

the defense in order to accommodate her con-

dition, and sustained certain substantive de-

fense objections when appropriate to do so.

She was entirely engaging during the jury se-

lection process and never seemed to confuse or

irritate the jurors during the evidentiary phase

of the trial or during the final arguments. In-

deed, it was this court’s observation through-

out the trial that the jurors liked her. This court

has no doubt but that her readily observable

speech impediment concern was accommodat-

ed, and that she was thus fully afforded a fair

and adequate opportunity to present her case,

which she accomplished at a level that far ex-

ceeded that of most pro-se litigants in jury tri-

als in spite of her condition.

Reed appealed but did not develop her ADA accommo-

dation argument before the appellate court. Instead, while

the appeal was still pending, she sued the state judge in

federal court (along with other court officials, the Cook

No. 14-1745 17

County Circuit Court, and the State of Illinois). Her new

lawsuit alleged that the defendants failed to accommodate

her disability during the trial of her personal-injury action

and thus violated the ADA, 42 U.S.C. §§ 12131 et seq., and

section 504 of the Rehabilitation Act, 29 U.S.C. § 794. In the

meantime, the state appellate court affirmed the judgment,

and the Illinois Supreme Court denied review.

The district court dismissed Reed’s suit based on collat-

eral estoppel (also known as issue preclusion), which “bars

relitigation of an issue already decided in a prior case.” In re

A.W., 896 N.E.2d 316, 321 (Ill. 2008). My colleagues agree

that the basic elements of issue preclusion are satisfied here;

the accommodation issue was raised and decided in the

state-court litigation, which proceeded to final judgment on

the merits, and no one disputes the identity of the parties. 1

See id. (explaining the elements of collateral estoppel).

Still, my colleagues refuse to give the state court’s ruling

preclusive effect. Here is the key passage in their analysis:

1 The majority hints that Reed’s suit raises issues beyond the adequacy of

the state court’s accommodation of her disability. Majority Op. at 11

(“[T]he present, federal litigation encompasses the full range of issues

concerning the scope and application of federal disability law to her

plight.”). That’s not correct. Reed has alleged a single failure-to-

accommodate claim under the ADA and the Rehabilitation Act. Both

statutes prohibit disability discrimination, see 42 U.S.C. § 12132 (the

ADA); 29 U.S.C. § 794 (the Rehabilitation Act), and failing to accommo-

date a disabled person is one form of disability discrimination. Reed

alleges that the defendants violated the ADA and the Rehabilitation Act

(i.e., they committed an act of disability discrimination) by inadequately

accommodating her disability during her state-court trial. She neither

alleges nor argues that the defendants committed any other acts of

disability discrimination.

18 No. 14-1745

[The plaintiff] knew she needed help to litigate

her personal-injury suit, especially having no

lawyer. And so she asked for help. Many of her

requests were ignored or denied by the judge,

who was at times impatient with and even

rude to her; and his conclusion that her disabil-

ity had been adequately accommodated was

untenable. There was nothing “fair” in his be-

stowal of inadequate accommodations, or in

his conclusion, in the very ruling on her post-

trial motion in which he adjudged her incom-

petent to make an oral presentation, that the

accommodations provided for her at trial had

been adequate.

Majority Op. at 10.

It is of course true that collateral estoppel is an equitable

doctrine and as such will be applied only when “no unfair-

ness results to the party being estopped.” Nowak v. St. Rita

High Sch., 757 N.E.2d 471, 478 (Ill. 2001). Under Illinois law,

“[i]n determining whether a party has had a full and fair

opportunity to litigate an issue in a prior action, those

elements which comprise the practical realities of litigation

must be examined.” Id.

Weighing the fairness question in light of the practical

realities of assessing the adequacy of accommodations for

disabled pro se litigants, I have several points of departure

with my colleagues. First and most obviously, the state judge

did not ignore or deny “many” of Reed’s requests, as the

majority asserts. To the contrary, as I’ve explained, the judge

granted most of the accommodations she requested and

denied only two—a microphone and an interpreter. Regard-

No. 14-1745 19

ing the former, Reed has not claimed that the jury or the

witnesses could not hear her. She tells us nothing about the

size of the courtroom or her proximity to the jury or witness

boxes during trial. If in fact her voice was too faint to be

heard without amplification, it’s inconceivable to me that

some participant in the trial—the defense attorney, a witness,

a juror—would not have spoken up and asked the judge to

fix the problem. On this record, it’s hard to see why the

failure to provide a microphone could be deemed unreason-

able, much less unfair.

Reed does allege that without an interpreter her commu-

nications were less effective than her opponent’s. But the

judge carefully explained in his post-trial ruling his conclu-

sion that Reed’s disability had been adequately accommo-

dated. In addition to the accommodations mentioned above

(a helper at counsel table, recesses as needed, etc.), he noted

that Reed was given “wide latitude in the presentation of her

case” and he “overruled many procedural objections by the

defense in order to accommodate her condition.” He also

explained that the jury did not seem confused or irritated by

her impairment. “Indeed,” he wrote, “it was this court’s

observation throughout the trial that the jurors liked her.”

Finally, the judge observed that Reed presented her case “at

a level that far exceeded that of most pro-se litigants in jury

trials in spite of her condition.” For these reasons (and others

reflected in the full text of the decision), the judge concluded

that Reed’s disability was appropriately accommodated and

she was “fully afforded a fair and adequate opportunity to

present her case.”

This thorough ruling, reproduced in full above, cannot

reasonably be characterized as “untenable,” as my col-

20 No. 14-1745

leagues assert. Majority Op. at 10. As the case comes to us,

we have no objective basis upon which to find the judge’s

ruling unfair and thus refuse to give it preclusive effect. 2 The

majority wrongly implies that because Reed was unable to

orally argue her post-trial motion, she must have been

unable to orally present her case to the jury. Majority Op. at 6

(“If she was incapable of ‘communicating in any vocal

fashion’ with regard to her post-trial motion, how can she

not have needed a microphone and interpreter at the trial to

help her overcome her ‘readily observable speech impedi-

ment?’”). This overlooks that Reed’s condition worsened

after trial; only then did oral communication become impos-

sible. Indeed, she has never alleged that she was unable to

orally communicate during trial. Rather, she alleges that her

communications were periodically interrupted by the dis-

tressing symptoms of tardive dyskinesia.

My colleagues conclude with the following observation:

2 It’s worth mentioning that Reed has never argued that applying

collateral estoppel is unfair for the reasons adopted by my colleagues.

Instead, she argued that applying collateral estoppel places her in an

unfair catch-22: If she had not requested accommodations in state court,

the ADA would not be implicated, but by asking the state judge for an

accommodation, she is estopped from litigating the issue in federal

court. Reed raised this argument for the first time in a Rule 59(e) motion

in the district court, see FED. R. CIV. P. 59(e), and the district court correct-

ly rejected it as an improper basis for relief under Rule 59(e), see Bordelon

v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000) (explaining

that Rule 59(e) is not a vehicle to raise new arguments not presented to

the district court prior to judgment). Regardless, because the state courts

are equally competent to resolve disability accommodation issues, I see

no inherent unfairness here.

No. 14-1745 21

For one court (the state court) to deny accom-

modations without which a disabled plaintiff

has no chance of prevailing in her trial, and for

another court (the federal district court) on the

basis of that rejection to refuse to provide a

remedy for the discrimination that she experi-

enced in the first trial, is to deny the plaintiff a

full and fair opportunity to vindicate her

claims.

Majority Op. at 12. This assumes that the two rejected ac-

commodations (a microphone and an interpreter) were in

fact necessary for Reed to present her case—indeed, were so

essential that the state judge’s resolution of the accommoda-

tion issue cannot be trusted and was downright unfair. For

the reasons already explained, I cannot agree.

Clearly my colleagues believe that the state judge

botched Reed’s request for accommodation. But mere disa-

greement with a final ruling in a prior case isn’t a proper

basis for a later court to deny its normal preclusive effect. If

it were, then few decisions would be final; judges disagree

all the time, especially on highly contextual and discretion-

ary judgments (such as how to accommodate a litigant’s

disability). The majority’s approach to collateral estoppel

allows repetitive litigation whenever the second-in-line court

disagrees strongly enough with the first. That approach

unsettles preclusion doctrine.

Because the elements of collateral estoppel are satisfied

and it’s not unfair to preclude Reed from relitigating the

accommodation issue, I would affirm the judgment of the

district court dismissing this suit.