Keith Dookeran v. Cook County

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3197

K EITH D OOKERAN,

Plaintiff-Appellant,

v.

C OUNTY OF C OOK, ILLINOIS,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 11 C 2802—Joan B. Gottschall, Judge.

A RGUED M ARCH 28, 2012—D ECIDED M AY 3, 2013

Before M ANION, S YKES, and H AMILTON, Circuit Judges.

S YKES, Circuit Judge. Dr. Keith Dookeran was hired

by John H. Stroger Hospital of Cook County in 2000

subject to biennial reappointment. In his 2004 applica-

tion for reappointment, Dookeran disclosed for the first

time that Mercy Hospital, his previous employer, had

reprimanded him for creating a hostile work environ-

ment. This disclosure triggered an investigation and peer

review by Stroger Hospital’s medical staff. An admin-

2 No. 11-3197

istrative committee eventually revoked Dookeran’s

staff privileges, and the Cook County Board formally

denied his reappointment application.

Dookeran sought judicial review by common-law writ

of certiorari in Cook County Circuit Court. The circuit

court ruled in his favor, but the Illinois Appellate Court

reversed and reinstated the denial of reappointment, and

the Illinois Supreme Court denied leave to appeal. While

these proceedings were ongoing in the Illinois courts,

Dookeran filed charges of employment discrimination

with the Illinois Department of Human Rights (“IDHR”)

and the Equal Employment Opportunity Commission

(“EEOC”) alleging that his reapplication was denied

based on his race and national origin and also in retalia-

tion for an earlier charge he had filed with the EEOC.

After a long delay, Dookeran received a right-to-sue

letter from the EEOC and brought this suit in federal

court against Cook County alleging discrimination and

retaliation in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e et seq. The County moved

to dismiss for lack of jurisdiction under Rooker-Feldman

and also on the basis of res judicata. The district court

rejected the jurisdictional argument but dismissed

Dookeran’s claims as barred by res judicata.

We affirm. First, the Rooker-Feldman doctrine does

not apply, so subject-matter jurisdiction is secure.

Second, the district court correctly held that Dookeran’s

Title VII claims are precluded. There is no real dispute

that the basic requirements of Illinois preclusion doc-

trine are met; the main point of contention is whether

No. 11-3197 3

Dookeran had a full and fair opportunity to litigate his

federal claims in the state-court proceedings. We hold

that he did. In Blount v. Stroud, 904 N.E.2d 1, 17-18 (Ill.

2009), the Illinois Supreme Court held that the state

circuit courts have jurisdiction to hear federal civil-

rights claims even though the Illinois Human Rights

Commission (“IHRC”) does not. Although some

decisions from the Illinois Appellate Court had held

otherwise, Dookeran was not prevented from bringing

his Title VII claims with his certiorari petition in the

circuit court to test whether this line of intermediate

appellate authority was correct. The successful plaintiff

in Blount did exactly that, and the state supreme court

held that the appellate decisions had misread the

statutory scheme. Accordingly, Dookeran could have

joined his Title VII claims with the state-court certiorari

proceeding. Because he did not, claim preclusion applies.

I. Background

Dr. Dookeran, a surgeon and surgical oncologist, was

hired by Stroger Hospital in 2000 subject to biennial

reappointment. In his 2004 application for renewal of his

employment and hospital privileges, he disclosed for

the first time that he had been reprimanded by Mercy

Hospital, his previous employer. He certified on his

earlier applications that he had not been reprimanded

in the last four years, when in fact he had received a

formal reprimand for creating a hostile work environ-

ment at Mercy. See Dookeran v. County of Cook, 920

N.E.2d 633, 637 (Ill. App. Ct. 2009). More particularly,

4 No. 11-3197

Dookeran was removed as director of surgical research

and associate director of the general surgery residency

program as a consequence of “unprofessional conduct

toward Mercy Hospital employees.” Id.

Dr. Howard Zaren, the department chair at Stroger

Hospital, submitted the matter to the hospital’s creden-

tials committee, which initiated an elaborate internal re-

view process to determine Dookeran’s fitness for reap-

pointment. The credentials committee investigated and

recommended to the executive medical staff that

Dookeran be denied reappointment. The executive

medical staff did not issue an immediate ruling and

referred the issue to the peer-review committee. That com-

mittee recommended a 29-day suspension of Dookeran’s

clinical privileges—a suspension of 30 or more days would

have required the hospital to report the discipline to a

national databank. The executive medical staff adopted

the peer-review committee’s suggestion, but increased

the suspension to 30 days. Because the 30-day suspen-

sion triggered the reporting requirement, Dookeran was

entitled to a hearing and appeal under Stroger Hospital’s

medical staff bylaws.

The five-member hearing committee determined that

Dookeran had falsified his 2002 reappointment applica-

tion. On the basis of this and other findings, the hearing

committee recommended that Dookeran’s staff member-

ship be suspended or revoked. The executive medical

staff continued to recommend a 30-day suspension,

but the joint-conference committee voted to revoke

Dookeran’s staff membership instead. That recommenda-

No. 11-3197 5

tion was sent for final action to the Cook County Board,

which formally denied Dookeran’s application for reap-

pointment on June 20, 2006.

Dookeran thereafter filed a petition for common-law

certiorari in Cook County Circuit Court seeking review

of the Board’s decision. In Illinois judicial review of

most administrative actions proceeds under the Admin-

istrative Review Law, 735 ILL. C OMP. S TAT. 5/3-101, but

the common-law writ of certiorari remains available

and serves the same function for judicial review of the

agency decisions that fall outside the statute. See Chi. Title

Land Trust Co. v. Bd. of Trs., 878 N.E.2d 723, 727 (Ill.

App. Ct. 2007). While the certiorari petition was pending

in the circuit court, Dookeran filed a charge of discrim-

ination with the IDHR and the EEOC alleging that

his application for reappointment was denied because

of his race (black) and national origin (Trinidadian).

Dookeran also alleged that the hospital discharged him

in retaliation for an EEOC charge he filed on June 27,

2005. At no time did Dookeran raise a claim of discrim-

ination in the circuit court.

The circuit court concluded that the hearing com-

mittee’s recommendation was not sufficiently sup-

ported by the record, vacated the denial of Dookeran’s

reappointment, and remanded for the hospital’s hearing

committee to reconsider and “to recommend a lesser

sanction.” Dookeran, 920 N.E.2d at 643. After additional

proceedings, the circuit court modified the judgment,

ordering the Board to suspend Dookeran’s clinical privi-

leges for 30 days. The Illinois Appellate Court reversed,

6 No. 11-3197

holding that the administrative decision was adequately

supported by the evidence and reinstating the denial of

reappointment. Id. at 650. The Illinois Supreme Court

denied leave to appeal. Dookeran v. County of Cook, 930

N.E.2d 408, 408 (Ill. 2010).1

In January 2011, after the certiorari proceeding in the

state courts concluded, the EEOC issued a right-to-sue

letter. Dookeran then filed this suit against Cook County

alleging claims under Title VII for discrimination and

retaliation on the basis of race and national origin. The

County moved to dismiss on two grounds: (1) lack of

jurisdiction under Rooker-Feldman; and (2) res judicata.

The district court held that the Rooker-Feldman doctrine

did not deprive the court of subject-matter jurisdiction

but dismissed the suit on the basis of res judicata.

Dookeran timely appealed.

II. Discussion

The primary issue on appeal is whether Dookeran’s

federal claims under Title VII are precluded because he

1

In 2007 Dookeran sued Cook County in state court for

breach of contract, retaliatory discharge, and defamation.

His claims were dismissed on res judicata grounds, and he

appealed. The Illinois Appellate Court recently affirmed,

holding that res judicata barred the claims for breach of

contract, and retaliatory discharge and truth provided a

complete defense to the defamation claim. See Dookeran v.

County of Cook, No. 1-11-1095, 2013 WL 1190285 (Ill. App. Ct.

(1st) Mar. 22, 2013).

No. 11-3197 7

could have raised them in his state-court action.2 But

the threshold question is jurisdictional. The Rooker-

Feldman doctrine 3 holds that the lower federal courts

lack subject-matter jurisdiction over actions that seek

review of state-court judgments; only the United States

Supreme Court has authority to review state judgments.

See Skinner v. Switzer, 131 S. Ct. 1289, 1297 (2011); Crawford

v. Countrywide Home Loans, Inc., 647 F.3d 642, 645

(7th Cir. 2011). Rooker-Feldman is a “narrow doctrine,

‘confined to cases brought by state-court losers complain-

ing of injuries caused by state-court judgments rendered

before the district court proceedings commenced and

inviting district court review and rejection of those judg-

ments.’ ” Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603,

(7th Cir. 2008) (quoting Lance v. Dennis, 546 U.S. 459, 464

(2006)). Stated differently, Rooker-Feldman is only con-

cerned with “situations in which the state court’s

decision is the source of the harm that the federal suit

is designed to redress.” Simmons v. Gillespie, No. 12-3381,

2013 WL 1110872, at *2 (7th Cir. Mar. 19, 2013).

The Rooker-Feldman doctrine does not apply here.

Dookeran’s Title VII discrimination and retaliation

claims do not seek redress for harm caused by the state-

2

In their briefs the parties use the term res judicata, which

can refer either to claim preclusion or issue preclusion. Claim

preclusion is implicated here; to avoid confusion, we use

the more precise term.

3

See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court

of Appeals v. Feldman, 460 U.S. 462 (1983).

8 No. 11-3197

court judgment. It is true that the claims involve the

same basic transaction that was at issue in the state-

court action; the certiorari proceeding and the claims in

this case arise from the denial of Dookeran’s application

for reappointment to the Stroger Hospital medical staff.

As we will explain, that transactional identity has

dispositive significance for preclusion analysis, but it

does not bring the Rooker-Feldman doctrine into play.

Dookeran’s Title VII claims do not invite federal-court

review and rejection of the judgment of the Illinois

courts in the certiorari proceeding. Subject-matter juris-

diction is intact.

That brings us to the main event in this appeal, which

is claim preclusion. The district court dismissed the

complaint under Rule 12(b)(6) of the Federal Rules of

Civil Procedure, so our review is de novo. Santana v.

Cook Cnty. Bd. of Review, 679 F.3d 614, 620 (7th Cir. 2012).

The preclusion rules of Illinois apply. Kremer v. Chem.

Constr. Corp., 456 U.S. 461, 481-82 (1982) (the judicial

acts, records, and proceedings of every state court are

given the same full faith and credit in every court

within the United States as they have in their own state

courts, see 28 U.S.C. § 1738; as such, federal courts

apply the preclusion doctrine of the state in which

the prior judgment was entered).

Illinois claim-preclusion law has three basic require-

ments: (1) a final judgment on the merits rendered by

a court of competent jurisdiction; (2) an identity of

the causes of action; and (3) an identity of parties or

their privies. Nowak v. St. Rita High Sch., 757 N.E.2d 471,

No. 11-3197 9

477 (Ill. 2001). The first and third elements are straight-

forward and are satisfied here; Dookeran does not

argue otherwise. As for the second element—whether

there is an identity of the causes of action—Illinois has

adopted the “transactional” analysis, which looks to see

if the claims “ ‘arise from a single group of operative

facts, regardless of whether they assert different theories

of relief.’ ” Arlin-Golf, LLC v. Village of Arlington Heights,

631 F.3d 818, 821 (7th Cir. 2011) (quoting River Park, Inc.

v. City of Highland Park, 703 N.E.2d 833, 893 (1998)).

“[T]he transactional test permits claims to be considered

part of the same cause of action even if there is not a

substantial overlap of evidence, so long as they arise

from the same transaction.” Id. (quotation marks omit-

ted). Again, Dookeran does not contest this part of the

analysis. His Title VII claims arise from the same

basic transaction as the state-court certiorari pro-

ceedings: the denial of his application for reappoint-

ment at Stroger Hospital.

The law of claim preclusion in Illinois includes the

concept of merger and bar, which “precludes the sequen-

tial pursuit not only of claims actually litigated, but of

those that could have been litigated.” Garcia v. Village of

Mt. Prospect, 360 F.3d 630, 639 (7th Cir. 2004) (applying

Illinois law); see also Durgins v. City of E. St. Louis, 272

F.3d 841, 843 (7th Cir. 2001) (same); City of Peoria v. Peoria

City Lines, Inc., 182 N.E.2d 164, 167 (Ill. 1962) (claim

preclusion bars all question decided in the prior litiga-

tion as well as “all questions which might properly

have been litigated and determined”). This principle,

however, is bounded by the Due Process Clause of the

10 No. 11-3197

Fourteenth Amendment, which overrides the otherwise

preclusive effect of a prior judgment if the claimant did

not have a “full and fair opportunity to litigate [his]

claim” in the prior action. Kremer, 456 U.S. at 480 (in-

ternal quotation marks omitted).

We have previously held that a federal civil-rights

claim may be joined with an action in Illinois circuit

court seeking judicial review of a decision by an adminis-

trative agency, which provides the “full and fair opportu-

nity to litigate” necessary for claim preclusion to ap-

ply. Garcia, 360 F.3d at 639-42; see also Pirela v. Village

of North Aurora, 935 F.2d 909, 913-15 (7th Cir. 1991).

Dookeran asks us to reconsider Garcia. He argues

that before 2009, when the state supreme court de-

cided Blount, federal employment-discrimination claims

could not be brought in Illinois circuit courts.

This argument requires a close analysis of Blount, an

important decision by the Illinois Supreme Court. Blount

involved a suit alleging various causes of action for

employment discrimination, including a claim of retalia-

tion under 42 U.S.C. § 1981 and a common-law retaliatory-

discharge claim. 904 N.E.2d at 4. The plaintiff won a

large judgment in the circuit court, but the Illinois Ap-

pellate Court threw it out on jurisdictional grounds. Id.

at 5. The appellate court held that the plaintiff’s sole

and exclusive redress was the administrative remedy

provided by the Illinois Human Rights Act (“IHRA”),

775 ILL. C OMP. S TAT. 5/101 (2008), and therefore the cir-

cuit court lacked subject-matter jurisdiction over the

§ 1981 and state common-law claims, 904 N.E.2d at 6. The

No. 11-3197 11

court relied on the jurisdictional bar contained in

section 8-111(D) of IHRA, which states: “Except as other-

wise provided by law, no court of this state shall have

jurisdiction over the subject of an alleged civil rights

violation other than as set forth in this Act.” 775 ILL.

C OMP. S TAT. 5/8-111(D).

The Illinois Supreme Court reversed. 904 N.E.2d at 18.

The court separately addressed whether the jurisdiction-

stripping provision in the IHRA barred the plaintiff’s

tort claim for retaliatory discharge and her claim under

§ 1981. Regarding the common-law claim, the court

explained that the IHRA “provides an exclusive remedy

for state ‘civil rights violations,’ as defined in the Act,

but makes no mention of common law tort actions.” Id.

at 10. Invoking the principle that “ ‘legislative intent to

abrogate the common law must be clearly and plainly

expressed,’ ” id. (quoting Maksimovic v. Tsogalis, 687

N.E.2d 21, 24 (Ill. 1997)), the court held that the IHRA

does not clearly express an intent to abolish common-

law torts factually connected to retaliation, and

therefore the “plaintiff’s claim for retaliatory discharge

was properly before the circuit court,” id.

The court reached a similar conclusion regarding the

§ 1981 claim. The court explained that as used in the

IHRA, the term “civil rights violation” has a specific and

limited meaning. Id. at 16 (citing 775 ILL . C OMP STAT. 5/1-

103(D) (listing the state statutory provisions to which

the term “civil rights violation” applies)). “[T]he adminis-

trative procedures contained in the Act, which govern

the filing and disposition of alleged ‘civil rights viola-

12 No. 11-3197

tions,’ are applicable only to civil rights violations

under the Act.” Id. Civil-rights violations arising

under federal law are not included in the statutory list,

so the court held that the IHRA’s administrative pro-

cedures—including the statutory provisions estab-

lishing the exclusive administrative remedy and the cor-

responding jurisdictional bar—do not apply to federal

civil-rights claims. Id. at 17. In other words, because the

IHRA’s jurisdictional limit applies only to the civil-

rights violations listed in the statutory definition—i.e.,

those arising under state law—the IHRA’s jurisdictional

bar “does not apply to civil rights violations defined by

and arising under federal law, as those violations are

outside the scope of the Act.” Id.

Finally, the court explained that because the “[c]ircuit

courts are courts of general jurisdiction,” id. (citing

Steinbrecher v. Steinbrecher, 759 N.E.2d 509, 515 n.3 (Ill.

2001)), they are “presumptively competent to adjudicate

claims arising under the laws of the United States,” id.

(citing Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820,

823 (1990)). Accordingly, the court held that the plaintiff

“could properly pursue her rights and remedies under

federal law in the circuit court.” Id. at 18.

After Blount it is clear that a federal civil-rights

claim may be brought in Illinois circuit court along with

a related administrative-review action, and a party’s

failure to do so will therefore raise the potential for

claim preclusion. Dookeran argues that before Blount

the law was murky and in fact prohibited him from

bringing his Title VII claims in the circuit court. This

No. 11-3197 13

overstates the matter. The state supreme court acknowl-

edged in Blount that some appellate-court decisions

had misread the IHRA as barring the circuit courts

from hearing federal civil-rights claims, and particularly

Title VII claims. Id. at 12-15 (citing Cahoon v. Alton Pack-

aging Corp., 499 N.E.2d 522 (Ill. App. Ct. 1986); Faulkner-

King v. Wicks, 590 N.E.2d 511 (Ill. App. Ct. 1992); Cooper v.

Ill. State Univ., 772 N.E.2d 396 (Ill. App. Ct. 2002); Brewer

v. Bd. of Trs. of Univ. of Ill., 791 N.E.2d 657 (Ill. App. Ct.

2003); Meehan v. Ill. Power Co., 808 N.E.2d 555 (Ill. App. Ct.

2004)). The court held, however, that these cases contra-

dicted the clear language of IHRA. Id. at 15. The court did

not view its holding, which overruled the Cahoon line of

cases, as working a change in Illinois law; to the contrary,

the court said the statute was “unambiguous” and the ap-

pellate court’s interpretation of IHRA’s jurisdictional

provision was plainly mistaken. Id. (refusing to apply

the doctrine of legislative acquiescence to the Cahoon

interpretation of the IHRA’s jurisdiction-stripping pro-

vision).

The upshot of Blount is that notwithstanding the

contrary view expressed in several Illinois appellate-

court decisions, the circuit courts in Illinois have juris-

diction to hear federal civil-rights claims—and this was

so both before and after Blount. We acknowledged in

Garcia, decided before Blount, that the Illinois appellate

courts were in conflict on the question of whether fed-

eral civil-rights claims could be “joined as independent

causes of action with administrative appeals heard by

Illinois circuit courts prior to the exhaustion of Illinois’

administrative process for the civil-rights claims.”

14 No. 11-3197

360 F.3d at 639. We specifically noted that the Cahoon

line of cases was contradicted by other Illinois appellate-

court decisions, some of which allowed § 1983 claims

to be joined as independent actions in the circuit court.

Id. at 641 (citing Stykel v. City of Freeport, 742 N.E.2d 906,

914 (Ill. App. Ct. 2001); Stratton v. Wenona Cmty. Unit

Dist. No. 1, 551 N.E.2d 640 (Ill. 1990)). The text of IHRA

and the presumption of concurrent jurisdiction cast

further doubt on the Cahoon line of cases even before

they were explicitly overruled by Blount.

Thus, prior to Blount putative Title VII plaintiffs like

Dookeran were not barred from presenting their claims

to the Illinois circuit courts. The Illinois Supreme

Court’s analysis in Blount does not undermine our deci-

sion in Garcia; to the contrary, our holding that the

Illinois circuit courts have jurisdiction over federal civil-

rights claims correctly anticipated Blount. Accordingly,

Dookeran had a full and fair opportunity to pursue

his Title VII claims with his certiorari action in the

circuit court.4 To the extent the circuit court would

4

A separate holding in Blount, not implicated here, may cast

some doubt on one aspect of our caselaw. The Illinois

Supreme Court held that federal civil-rights claims cannot

be brought in the administrative forum provided in the

IHRA, which applies only to state civil-rights violations.

Blount v. Stroud, 904 N.E.2d 1, 15-17 (Ill. 2009). This holding

calls into question a general suggestion, made or implied in

our decisions in Abner v. Illinois Department of Transportation,

(continued...)

No. 11-3197 15

have refused to hear his claims based on the erroneous

caselaw from the Illinois appellate courts, Dookeran’s

recourse was the same as in Blount—take an appeal and

ask the Illinois Supreme Court for an authoritative in-

terpretation of the IHRA’s jurisdictional provision.

Because Dookeran failed to raise his Title VII claims in

his earlier state-court action, the district court properly

dismissed them as barred by claim preclusion.

A FFIRMED.

4

(...continued)

674 F.3d 716, 721 (7th Cir. 2012); Hayes v. City of Chicago, 670

F.3d 810, 814 (7th Cir. 2012); and Welch v. Johnson, 907 F.2d 714,

723-24 (7th Cir. 1990), that a federal civil-rights claim may be

raised as a defense in Illinois administrative proceedings.

Nothing in Blount undermines the judgments in Abner, Hayes,

and Welch, however. As we have explained, the Illinois

circuit courts have jurisdiction to hear federal civil-rights

claims even though the IHRC does not, Blount, 904 N.E.2d at 15-

17, and they may do so in tandem with judicial-review pro-

ceedings brought pursuant to statute or common-law writ

of certiorari, see, e.g., Stratton v. Wenona Cmty. Unit Dist. No. 1,

551 N.E.2d 640, 645-47 (Ill. 1990).

16 No. 11-3197

H AMILTON, Circuit Judge, dissenting. I respectfully

dissent. When plaintiff’s case was pending in the state

courts, he did not have a full and fair opportunity to

litigate his federal claims of race and national origin

discrimination there. If he had tried to assert these

claims along with his certiorari petition in the state

courts in 2006, he would have run into two decades of

solid appellate precedent holding that the state trial

courts simply did not have jurisdiction over those

federal claims. In the face of those precedents, and with

the federal courthouse doors then seemingly open to

him, Dr. Dookeran took a reasonable path. He followed

established law by waiting to pursue his federal claims

in federal court. He should not be penalized by a

claim preclusion bar for having done so. (Like the

majority, I will refer to claim preclusion rather than

res judicata.)

For purposes of our review of the district court’s dis-

missal of this action, we must assume on the merits that

considerations of race and national origin did in fact

influence the decision to terminate Dr. Dookeran’s em-

ployment. In deciding whether claim preclusion now

bars Dr. Dookeran’s federal claims, the pivotal issue

is whether he had “a full and fair opportunity to liti-

gate” his claims of race and national origin discrimina-

tion in the state trial court that heard his common law

certiorari challenge to his dismissal. See generally

Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-

81 (1982) (“[T]he judicially created doctrine of collateral

estoppel does not apply when the party against whom

the earlier decision is asserted did not have a ‘full and

No. 11-3197 17

fair opportunity’ to litigate the claim or issue.”), quoting

Allen v. McCurry, 449 U.S. 90, 95 (1980), Montana v.

United States, 440 U.S. 147, 153 (1979), and Blonder-Tongue

Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 329

(1971); see also Garcia v. Village of Mount Prospect, 360 F.3d

630, 634 (7th Cir. 2004) (federal court can deny claim

preclusion if state courts denied parties a full and fair

opportunity to litigate the matter).

More specifically, “claim preclusion generally does not

apply where ‘[t]he plaintiff was unable to rely on a

certain theory of the case or to seek a certain remedy

because of the limitations on the subject matter jurisdic-

tion of the courts . . . .” Marrese v. American Academy of

Orthopaedic Surgeons, 470 U.S. 373, 382 (1985), quoting

Restatement (Second) of Judgments § 26(1)(c) (1982).

Illinois courts apply this jurisdictional limit on claim

preclusion. See River Park, Inc. v. City of Highland Park, 703

N.E.2d 883, 896 (Ill. 1998), citing, e.g., Restatement § 26(1);

Marrese v. American Acadamy of Orthopaedic Surgeons,

628 F. Supp. 918, 924 (N.D. Ill. 1986) (after remand, ap-

plying jurisdictional limitation to find no claim preclu-

sion). That rule applies directly here.

We must evaluate Dr. Dookeran’s opportunity to

present his federal discrimination claims in the state

courts at the time he might have tried do so, in 2006.

That requires a brief tour through now-defunct Illinois

case law. In 2006, Dr. Dookeran would have run into

a solid wall of appellate precedent holding that Illinois

trial courts had no jurisdiction over federal claims of

discrimination. Those cases interpreted a provision of

18 No. 11-3197

the Illinois Human Rights Act stating: “Except as

otherwise provided by law, no court of this state shall

have jurisdiction over the subject of an alleged civil

rights violation other than as set forth in this Act.” 775

Ill. Comp. Stat. 5/8-111(D) (2008).1

The statutory term “civil rights violation” is defined in

the Act: “ ‘Civil rights violation’ includes and shall be

limited to only those specific acts set forth in Sections

2-102, 2-103, 2-105, 3-102, 3-102.1, 3-103, 3-104, 3-104.1,

3-105, 3-105.1, 4-102, 4-103, 5-102, 5A-102, 6-101, and 6-102

of this Act.” 775 Ill. Comp. Stat. 5/1-103(D). The re-

ferenced sections all deal with one form or another of

discrimination. For our purposes, the most relevant is

section 2-102, which prohibits “unlawful discrimina-

tion” in employment. “Unlawful discrimination” is in

turn defined to mean discrimination on the basis of

“race, color, religion, national origin, ancestry, age, sex,

marital status, order of protection status, disability,

military status, sexual orientation, or unfavorable dis-

charge from military service as those terms are defined

in this Section.” 775 Ill. Comp. Stat. 5/1-103(Q).

The statutory language does not distinguish be-

tween those discrimination claims that arise under

federal law and those that arise under state law. Accord-

ingly, the Illinois Appellate Court held repeatedly that

1

The language was earlier in section 5/8-111(C), as indicated

in some quotations below. At the time, the Act provided for

judicial review of final agency actions before the Illinois

Appellate Court.

No. 11-3197 19

the jurisdictional bar was not limited to state law claims

but also applied to federal discrimination claims. See

Cahoon v. Alton Packaging Corp., 499 N.E.2d 522, 523 (Ill.

App. 1986) (“the plain language of Section 8-111(C) re-

quires that an Illinois court dismiss [a federal age dis-

crimination] case unless state administrative remedies

have been exhausted”); Faulkner-King v. Wicks, 590 N.E.2d

511, 516 (Ill. App. 1992) (Illinois Human Rights Act pre-

cluded state court jurisdiction over Title VII claims);

Cooper v. Illinois State Univ., 772 N.E.2d 396, 401 (Ill. App.

2002) (dismissing plaintiff’s ADEA and Title VII claims:

“We adhere to Faulkner-King and Cahoon, and thus

hold that in Illinois, the Act is the exclusive source of

a remedy for employment-discrimination claims. . . .”)

(citations omitted); Brewer v. Bd. of Trustees of Univ. of

Illinois, 791 N.E.2d 657, 662 (Ill. App. 2003) (in rejecting

plaintiff’s argument that IHRA § 8-111(C) did not

preclude state court jurisdiction over Title VII and § 1983

claims: “we disagree with plaintiff’s interpretation

of section 8-111(C). Neither Title VII nor section 1983

provides that plaintiffs may sue in state court.”);

Meehan v. Illinois Power Co., 808 N.E.2d 555, 562 (Ill.

App. 2004) (“[F]ederal claims of age discrimination are

treated identically to state claims of age discrimination.

The circuit courts of Illinois have no jurisdiction over

claims of age discrimination in employment, whether

based on federal law or state law.”).

To be sure, the Cahoon line of cases was deeply problem-

atic. In terms of our federal system of government, it’s

a problem when state courts of general jurisdiction

refuse to exercise jurisdiction over a class of claims

20 No. 11-3197

arising under federal law. E.g., Haywood v. Drown, 556

U.S. 729 (2009) (state could not bar state trial court juris-

diction over category of federal claims under 42 U.S.C.

§ 1983). In more practical terms, the limit on state trial

court jurisdiction meant that when plaintiffs asserted

a variety of claims arising out of an adverse employ-

ment action, both employees and employers could face

a bewildering maze of jurisdictional paths and road-

blocks depending on whether claims were federal or

state, statutory, constitutional, or common law.

Three years after Dr. Dookeran made his choice to

follow the Cahoon line of cases and to wait to present his

federal discrimination claims in federal court, the Illinois

Supreme Court resolved some of those problems by

overruling the Cahoon line of cases. Blount v. Stroud, 904

N.E.2d 1 (Ill. 2009). In Blount, the state’s highest court

concluded that the statutory term “civil rights violation”

is limited to civil rights violations arising under the

enumerated sections of the state statute and does not

include claims arising under federal law. Id. at 16.

In concluding that Dr. Dookeran had a full and fair

opportunity to bring his federal race and national origin

discrimination claims in state court before Blount was

decided, the majority reasons that Dr. Dookeran could

have done what Ms. Blount did: raise her federal dis-

crimination claims in state court and challenge the

two decades of controlling precedent depriving Illinois

state courts of jurisdiction over such claims. In my view,

deeming that route a full and fair opportunity to

litigate Dr. Dookeran’s claims in the state courts is

simply not realistic.

No. 11-3197 21

At the relevant time, the state courts appeared to

be closed to Dr. Dookeran’s federal claims, but the

federal courts appeared to be open. Let’s suppose that

back in 2006, Dr. Dookeran and his lawyer had studied

the question and reached the conclusion that the Cahoon

line of cases had consistently misread the statute.

Dr. Dookeran and his lawyer still had no compelling

reason to pick up that particular lance and attack that

jurisdictional windmill when the federal courts would

have been open to his claims. A litigant who simply

wants to have his claims heard on the merits cannot be

faulted, and certainly should not be penalized with

claim preclusion, because he reasonably relied on well-

established law and chose not to spend the time,

energy, and money to fight the choice-of-forum issue

all the way to the Illinois Supreme Court. From the per-

spective of a plaintiff who merely wants to be heard by

a fair tribunal — any fair tribunal — there was no need

to try to force the lock on the Illinois courthouse

doors when the federal courthouse doors seemed to

be open.

To avoid this reasoning, the majority also suggests

that Illinois case law before Blount was actually split on

whether “alleged civil rights violation[s]” under the

Act included federal discrimination claims. Given the

strength and specificity of the holdings in the Cahoon

line of cases, I doubt that even some arguably conflicting

authority should make a difference in deciding whether

Dr. Dookeran had a full and fair opportunity to bring

his federal discrimination claims in the state court. On

closer examination, however, I submit there was no

22 No. 11-3197

genuine conflict between the Cahoon line of cases and the

cases cited by the majority, Stratton v. Wenona Community

Unit Dist. No. 1, 551 N.E.2d 640, 646 (Ill. 1990), and Stykel

v. City of Freeport, 742 N.E.2d 906 (Ill. App. 2001).

Recall that the Cahoon line of cases relied entirely on

the statutory definition of “civil rights violation,”

which was limited in relevant part to claims of unlawful

discrimination. Neither Stratton nor Stykel involved

a claim for discrimination. In Stratton, the Illinois

Supreme Court held that a trial court reviewing an ad-

ministrative decision to expel a student from a public

school could take additional evidence and adjudicate

a federal due process claim under 42 U.S.C. § 1983.

In Stykel, the appellate court held that firefighter

applicants who had scored zero on a qualifying examina-

tion could pursue federal constitutional civil rights

claims in state court under section 1983. The court’s

opinion, however, did not indicate any allegations of

unlawful discrimination.

When one keeps in mind the Cahoon line’s focus on

discrimination, the perceived conflict between those

cases and Stratton and Stykel disappears. The Illinois

courts generally observed this distinction, and Judge

Kennelly explained it well in Thompson v. Solo, No. 03-cv-

8766, 2004 WL 2581092, *4 (N.D. Ill. Aug. 26, 2004)

(holding that plaintiff’s federal claim that was not a

claim for discrimination was barred by claim preclusion,

No. 11-3197 23

and distinguishing Cahoon line of cases on this basis).2

Moreover, in Blount itself, the Illinois Supreme Court

did not say it was resolving a conflict among appellate

court decisions. It was simply overruling a consistent

but erroneous line of authority. See Blount, 904 N.E.2d

at 12-13, 15; see also Blount v. Stroud, 877 N.E.2d 49,

61 (Ill. App. 2007) (stating, in opinion reversed by

supreme court: “All of the courts in Illinois to have con-

sidered the issue have held that Illinois Circuit Courts

lack the subject matter jurisdiction to adjudicate civil

rights claims brought under state and federal law.”).

Thus, the idea that Dr. Dookeran could have brought

his federal discrimination claims with his certiorari

2

Our opinion in Garcia v. Village of Mount Prospect, 360 F.3d

630, 639-42 (7th Cir. 2004), was issued before Blount and per-

ceived the same tension seen by the majority today, but Garcia

also failed to focus on the difference between discrimination

claims and other types of claims. Garcia avoided resolving the

issue by making a further mistake, concluding that a plaintiff

with a federal discrimination claim could bring his claim to

the Illinois Human Rights Commission and then seek judicial

review in the Illinois circuit courts. Id. at 642. At that time,

actions of the IHRC could be reviewed only in the Illinois

Appellate Court, as the appellee admits here. See 775 Ill. Comp.

Stat. 5/8-111(A)(1) (2007); Appellee’s Br. at 25. The Illinois

Human Rights Act was amended effective in 2008, too late

to help Dr. Dookeran or Mr. Garcia, to allow employees

to choose between administrative adjudication before

the IHRC and a circuit court. See 775 Ill. Comp. Stat. 5/7A-

102(D)(3), (D)(4), and (G)(2) (2008), as amended by Public Act

95-243, § 5.

24 No. 11-3197

petition to Illinois state courts in 2006 is untenable.

Before the Illinois Supreme Court’s decision in Blount,

no litigant could reasonably have been expected to

choose to attempt to invalidate the solid wall of

precedent in the Cahoon line of cases over doing what

Dr. Dookeran did here — bring his federal discrimina-

tion claims in federal court. For this reason, I do not

believe that Dr. Dookeran’s state court proceedings

provided him with a full and fair opportunity to be

heard on his federal discrimination claims.3

Although it is perhaps little consolation to Dr. Dookeran,

I take some comfort from two points. First, at least at

the time of oral argument, Dr. Dookeran’s discrimina-

tion claims under state law were still pending before

the Illinois Human Rights Commission, which could

yet give him an opportunity to be heard on the mer-

its. Second, this case may be a case of nearly last im-

pression. Recent changes in both Illinois case law and

statutes offer hope for greater clarity in handling

these cases that combine federal and state law on

both discrimination and other types of claims. In the

end, though, I cannot agree that Dr. Dookeran had a

full and fair opportunity to have his claims heard in

the Illinois trial court in 2006. I would reverse and

3

I agree with the majority that subject matter jurisdiction is

not precluded by the Rooker-Feldman doctrine and that claim

preclusion would apply in similar cases brought after Blount

was decided, as it unlocked the Illinois state courthouse

doors for federal discrimination claims in those cases.

No. 11-3197 25

remand for further proceedings on the merits of his

federal discrimination claims.

5-3-13