Palka v. City of Chicago

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