Lawsuites Agains Alton Police Department for Misconduct Il

757 F.2d 878

37 Fair Empl.Prac.Cas. 523,
36 Empl. Prac. Dec. P 35,088
Carl L. JONES, Sr., Plaintiff-Appellant,
5.
CITY OF ALTON, ILLINOIS, a municipal corporation, and Ceremonious
Service Commission of the City of Alton, Illinois,
Defendants-Appellees.

No. 83-2395.

United states of america Courtroom of Appeals,
Seventh Circuit.

Argued Oct. thirty, 1984.
Decided March 12, 1985.

Earle McCaskill, East St. Louis, Ill., for plaintiff-appellant.

Theodore Eastward. Diaz, Diaz & Diaz, Alton, Ill., for defendants-appellees.

Before CUDAHY and COFFEY, Excursion Judges, and GRANT, Senior District Judge.*

CUDAHY, Circuit Judge.

Advertisement

1

Plaintiff, Carl L. Jones, Sr., brought this activeness under 42 United states of americaC. Sec. 1983 and Championship VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., alleging employment discrimination. Defendants, the City of Alton (the "City") and the Civil Service Commission of the City of Alton (the "Committee"), moved for dismissal. The district court entered an order dismissing the activity on res judicata grounds.1 Plaintiff appeals the order dismissing his action. We contrary.

I.

2

On December 16, 1977, plaintiff, then a member of the Alton Police Department, while off duty, was observed past two security guards inside a department shop in Alton, Illinois, equally he placed a videotape cassette in his trousers. When the guards apprehended him in the store parking lot plaintiff admitted removing the record from the store without paying for it, just claimed he did and so inadvertantly. On December 29, 1977, the Alton Police Master, one Rudy C. Sowders, Jr., filed a Complaint for Discharge of the plaintiff with defendant Civil Service Committee of the Urban center of Alton. The Complaint alleged that plaintiff'due south comport at the store violated Rules 300.02, 300.04 and 300.24 of the Rules and Regulations of the Alton Police Department2 and Rules thirteen.1-1(a), (h), (l) and (k) of the Rules of the Civil Service Committee.three

3

The Committee held a hearing on the Complaint on the 2d and tertiary of February, 1978. During the hearing, plaintiff, who is black, attempted to introduce through questions directed to Master Sowders evidence disposed to bear witness that white law officers who had been involved in activities equally bad as or worse than plaintiff'south off-duty retail theft had not been recommended for discharge. For a reason not specified by the Commission, plaintiff was not allowed to present his testify. He was allowed to make an offer of proof. At the conclusion of the hearing the Commission found that plaintiff had violated the Civil Service Rules every bit alleged and ordered him discharged effective December 27, 1977. The Civil Service order is a page and a half long. It makes no mention of the initial question or objection, the evidentiary ruling or the offer of proof. No transcript of the hearing is included in the record we have before us.

4

Plaintiff filed a complaint for authoritative review in the Circuit Court of Madison County, Illinois, which affirmed the decision of the Commission. Jones 5. Civil Service Committee, No. 78 MR 95 (July eighteen, 1978). In its opinion the circuit court stated that the court on authoritative review must act every bit a reviewing court and not as a finder of fact, may consider merely matters brought before the Committee at its hearing and, and then long as the procedures required past law were followed by the Commission, is limited to deciding whether the Committee decision was against the manifest weight of the evidence. The courtroom concluded that the required procedures had been followed, that the Commission'south decision was not capricious or against the manifest weight of the evidence and that the belch was proper. Buried in the center of the opinion is a single paragraph which, in hindsight, appears to be an allusion to plaintiff's racial bigotry claim. In its entirety, the paragraph states:

v

Plaintiff contends that the Commission erred when it sustained an objection to a question propounded by plaintiff'due south attorney to Police Chief Sowders: "At present throughout your tenure every bit either an employee of the Alton Police Department or as Master of Police, are you familiar with whatever Officers e'er charged with any crimes?" (R. 164). In my opinion, this show was conspicuously irrelevant.

6

Circuit Courtroom Opinion at 5, Supp.App. at xvi.

seven

Plaintiff then appealed to the Appellate Court of Illinois, 5th District. In his brief on entreatment, plaintiff primarily argued the race bigotry outcome. Supp.App. at 22. According to the brief, he had filed a motion for reconsideration before the Circuit Courtroom, arguing that the evidentiary ruling on the attempted comparing with other police force officers was wrong. Supp.App. at 28-29. The cursory explains that the movement for afterthought was denied in an stance (non in the record) property that plaintiff was too late in citing Commission rules that require fairness in employment decisions (the theory beingness that he should take raised this upshot earlier the Commission), and that the prove sought to be admitted was irrelevant in whatever case. In his brief, plaintiff argued that the Committee's fairness rules were constructively before information technology during its ain hearing and, whether or not the rules were properly before the Commission, they could be judicially noticed on administrative review. He farther argued that the attempted line of inquiry was highly relevant nether McDonnell Douglas Corp. 5. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).four

Advertisement

8

The Illinois Appellate Court affirmed the conclusion of the Circuit Courtroom. Jones v. Civil Service Commission, 80 Ill.App.3d 74, 35 Ill.Dec. 422, 399 N.E.2d 256 (5th Dist.1979). The Appellate Court stance clearly holds that in that location was sufficient evidence in the record supporting the finding of retail theft, and that retail theft was sufficient cause for discharge. 80 Ill.App.3d at 76, 35 Ill.Dec. at 424, 399 Northward.Eastward.2d at 258. Nonetheless, the opinion is not at all clear in its discussions of the bigotry issue. There are ii separate passages in the opinion which bear upon on this question.

9

In the introductory passages, we learn that "[d]uring the hearing Jones attempted to establish that he, as a blackness constabulary officer, was receiving disparate handling." fourscore Ill.App.3d at 75, 35 Ill.December. 423, 399 Northward.Eastward.2d at 257. We also learn that after Main Sowders' objection to the question about other officers' offenses was sustained on grounds of relevance and materiality, plaintiff fabricated an offering of proof which indicated that one white police force officer received a 30-solar day suspension later being defendant of stealing 15 gallons of gasoline, and that a white officer charged with removing police records was suspended for 20 days. Id. The appellate court noted that the circuit court plant this proffered evidence to exist "clearly irrelevant," and went on to state that "the commencement issue on appeal is whether the Civil Service Commission properly refused to acknowledge the evidence to demonstrate discriminatory treatment in plaintiff's case." Id. In "deciding" this effect, however, the courtroom noted only that

10

[p]laintiff, in his offering of proof, did not indicate that he was in a position to produce evidence establishing that white police officers received more lenient treatment in the face of established guilt. Rather, plaintiff offered an unsubstantiated conclusion that criminal conduct on the part of white constabulary officers resulted in the imposition of apparently minimal disciplinary sanctions.

11

Id. at 75, 35 Ill.Dec. at 423-24, 399 N.Due east.2d at 257-58. "Moreover," the court continued, "... the actions of the department caput are not binding upon it and the Commission may reach its own decision on the merits of the case." Id. at 75, 35 Ill.Dec. at 424, 399 N.E.2d at 258.

12

The court then proceeded to the sufficiency of the evidence question.v Nosotros are not informed what Illinois police requires past mode of an offering of proof in a hearing before an administrative agency for a party to exist able to overcome a relevancy objection. It is at to the lowest degree articulate that Jones made his race discrimination claim known to the Civil Service Commission. Standing lone, the holding on the offering of proof might be enough to establish that plaintiff could have raised his discrimination claim if he had fabricated a proper offer of proof (and thus his subsequent suit would be barred by res judicata ). Certainly, if the Commission was contained of the department head, whatever evidence concerning a reason non to follow his recommendation--such as that his recommendations were racially motivated--would be highly relevant to the Commission's inquiry. Thus, if the evidence was excluded as irrelevant information technology must exist because the offer of proof was drastically bereft. The important betoken, withal, is that the plaintiff would accept been accorded an opportunity to litigate the issue of race discrimination, and under principles of merits preclusion, he would be barred from bringing the present suit (alternatively, if he did litigate the issue simply lost, he would be barred by issue preclusion).

13

However, the remainder of the appellate court'due south opinion casts doubtfulness on its willingness to entertain the discrimination claim whether or non it was properly raised. The court stated that "[s]ufficient cause for plaintiff's belch exists regardless of whether other officers had received different treatment." 80 Ill.App.3d at 76, 35 Sick.December. at 424, 399 Northward.E.2d at 258. Under federal law, of form, this is not the terminate of the inquiry. Farther, in other cases the Illinois appellate courts take considered defenses of racially discriminatory selective enforcement of employment regulations in determining whether there was "crusade" for belch. See, e.thou., Trick v. Civil Service Commission, 66 Sick.App.3d 381, 23 Ill.Dec. 174, 383 N.E.2d 1201 (1st Dist.1978). The courtroom went on to hold that McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), and McDonnell Douglas Corp. v. Green, 411 U.Due south. 792, 93 Due south.Ct. 1817, 36 L.Ed.2nd 668 (1973), on which plaintiff relied to support his argument that the proffered evidence was relevant and admissible, being "brought under Title 7 of the Civil Rights Act of 1964 ... are distinguishable from and inapplicable to the instant state of affairs." lxxx Ill.App.3d at 76, 35 Ill.December. at 424, 399 Due north.Due east.2d at 258. This could just be truthful if racially discriminatory treatment were not a defense to the charge and could not be considered by the Commission or reviewing court in its conclusion of whether at that place was crusade for discharge. And that, of course, is non the law of this country.

14

Nosotros will return to this unsatisfactory expression by the appellate courtroom of the basis of its decision in our give-and-take of Illinois preclusion police.

15

Plaintiff's petition for leave to entreatment to the Illinois Supreme Courtroom was denied May 29, 1980. In the meantime Jones attempted to pursue a federal remedy. In April, 1978, he filed a charge with the Equal Employment Opportunity Commission (the "EEOC"). He received a right-to-sue letter from the EEOC in January, 1981, and filed a civil rights activeness in the commune court in Apr of that yr. That action was dismissed for failure to join the Committee, an indispensable party. Plaintiff then commenced the present action.6 The four-count Second Amended Complaint alleges that defendants committed an unlawful employment exercise past recommending and causing plaintiff'due south discharge from employment for an declared human action of shoplifting while off duty by treating plaintiff in a mode disparate from that in which white officers were treated, and by preventing plaintiff from presenting evidence of alleged discrimination past disparate treatment at the hearing before the Commission. The second, third and fourth counts also criminate denial of a fair hearing and damages from that and from racial discrimination. Defendants moved to dismiss the complaint, their motion was granted and plaintiff'south activeness was dismissed equally barred by "the doctrines of collateral estoppel and res judicata." Order at three, App. at 93. Plaintiff appealed the dismissal.

II.

16

It is settled constabulary that a state court judgment must be given the same res judicata event in federal court that it would be given in the courts of the rendering land. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 Southward.Ct. 892, 79 Fifty.Ed.2d 56 (1984); Mandarino v. Pollard, 718 F.2d 845, 848 (seventh Cir.1983), cert. denied, --- U.Southward. ----, 105 S.Ct. 116, 83 L.Ed.second 59 (1984); 28 United states of americaC. Sec. 1738. Cf. Marrese v. American Academy of Orthopaedic Surgeons, 726 F.second 1150, 1154 (seventh Cir.) (en banc ) (section 1738 ought not prevent federal courts from giving greater res judicata effect to state courtroom judgments than would courts of the rendering country), rev'd. --- U.S. ----, 105 S.Ct. 1327, 84 L.Ed.2nd 274 (1985). This dominion applies to Sec. 1983 actions with respect to problems actually litigated (effect preclusion), Allen 5. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 Fifty.Ed.second 308 (1980), and also issues which could have been but were not litigated in the land court proceedings (claim preclusion), Lee v. City of Peoria, 685 F.2nd 196, 198-99 (seventh Cir.1982). Migra v. Warren City School District Lath of Education, 465 U.South. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). The same rules use to Title VII actions. See Kremer five. Chemical Structure Corp., 456 U.S. 461, 102 Due south.Ct. 1883, 72 L.Ed.2d 262 (1982) (result preclusion); id. at 481-82 northward. 22, 102 Due south.Ct. at 1897 north. 22 (claim preclusion would employ as well); Unger five. Consolidated Foods Corp., 693 F.2d 703 (7th Cir.1982) (issue preclusion), cert. denied, 460 U.S. 1102, 103 Due south.Ct. 1801, 76 L.Ed.second 366 and --- U.Southward. ----, 104 Southward.Ct. 549, 78 L.Ed.2d 723 (1983); Lee v. City of Peoria, 685 F.second at 198-99 (claim preclusion). See too Migra, 104 South.Ct. at 896.

17

1 general limitation is that the concepts of claim and event preclusion (res judicata in the broad sense) cannot apply when the political party against whom the earlier judgment is asserted did non have a full and off-white opportunity to litigate the consequence in the earlier example. Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 50.Ed.2nd 595 (1983); Kremer, 456 U.Due south. at 480-81, 102 S.Ct. at 1896-97; Allen, 449 U.South. at 95, 101 Due south.Ct. at 415. When the prior determination is by a country court, so the federal court is bound by 28 U.S.C. Sec. 1738, whether the first adjudication offered a full and off-white opportunity to litigate the issue is determined by the Due Process Clause of the Fourteenth Amendment. Kremer, 456 U.Due south. at 481, 102 S.Ct. at 1897. So long as the state proceedings satisfy the minimum procedural requirements of the Due Procedure Clause, the country judgment is entitled to full faith and credit in the federal courts, and will be given the same preclusive effect past the federal courts that it would be given by the courts of the rendering state. Kremer, 456 U.S. at 481-82, 102 S.Ct. at 1897. But see Haring, 462 U.S. at 313, 103 South.Ct. at 2373 (additional exceptions to application of collateral estoppel rules may be warranted in Sec. 1983 actions considering of federal policy underlying Sec. 1983).

18

Thus plaintiff hither is barred from relitigating his merits of employment bigotry in federal court unless either (i) the state proceedings failed to satisfy the minimum procedural requirements of the Due Process Clause, or (2) he would non be barred under the state rules of claim and upshot preclusion from relitigating the thing in the state courts. Preferring to avoid constitutional bug if possible, we turn offset to a consideration of the preclusive effects of the country proceedings under Illinois law.

Three.

19

Illinois distinguishes between estoppel by judgment (res judicata in the narrow sense, i.e. merits preclusion) and estoppel by verdict (collateral or straight estoppel, i.e. issue preclusion). Redfern v. Sullivan, 111 Sick.App.3d 372, 375, 67 Sick.Dec. 166, 169, 444 N.E.2nd 205, 208 (fourth Dist.1983); Morris five. Union Oil Co., 96 Ill.App.3d 148, 153-54, 51 Ill.Dec. 770, 774, 421 Due north.E.2d 278, 282 (fifth Dist.1981). Run across People 5. Os, 82 Ill.2d 282, 45 Ill.Dec. 93, 412 N.East.second 444 (1980), cert. denied, 454 U.S. 839, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981); Gay 5. Open Kitchens, Inc., 100 Ill.App.3d 968, 56 Ill.Dec. 258, 427 Northward.E.second 338 (1st Dist.1981). There is a difference between the upshot of a judgment as a bar to the prosecution of a second action upon the same claim or demand and the event of a judgment every bit an estoppel in another suit betwixt the same parties on a dissimilar claim or cause of activity. Os, 82 Ill.second at 286-87, 45 Ill.Dec. at 95, 412 Due north.E.2d at 446; Skolnick 5. Petella, 376 Ill. 500, 503-04, 34 N.E.2nd 825, 826-27 (1941). The erstwhile is res judicata (as we call information technology, claim preclusion), which "operates as an absolute bar to a subsequent activity where a prior judgment rests on the claim, 'non only as to every affair which was offered and received to sustain or defeat the claim or need, merely equally to whatsoever other admissible matter which might have been offered for that purpose.' " Bone, 82 Sick.second at 287, 45 Ill.Dec. at 95, 412 Due north.E.2d at 446 (quoting Cromwell five. County of Sac, 94 U.S. (4 Otto) 351, 352, 24 Fifty.Ed. 195 (1877)). See Skolnick, 376 Ill. at 504-05, 34 Due north.E.2d at 827; Redfern, 111 Ill.App.3d at 375, 67 Ill.Dec. at 169, 444 N.E.2d at 208; Morris, 96 Ill.App.3d at 154, 51 Ill.Dec. at 774, 421 N.Eastward.2d at 282. The latter constitutes collateral estoppel or estoppel by verdict (i.due east. issue preclusion in our terms), which "concludes only 'those matters in event or points controverted, upon the determination of which the finding or verdict was rendered.' " Bone, 82 Ill.2nd at 287, 45 Ill.Dec. at 95, 412 Due north.E.2d at 446 (quoting Cromwell, 94 U.Due south. at 353). See Skolnick, 376 Ill. at 503, 34 N.Due east.2d at 826; Redfern, 111 Ill.App.3d at 375, 67 Ill.Dec. at 169, 444 N.E.second at 208-09; Morris, 96 Ill.App.3d at 153, 51 Sick.Dec. at 774, 421 N.E.2d at 282.

20

Nosotros need not decide whether the principles of merits preclusion or those of event preclusion apply here. Under either set of principles our event would be the aforementioned. The plaintiff here clearly tried to raise and litigate in the proceedings earlier the Commission the upshot of disparate handling on account of his race. If he succeeded in raising the issue, then he would be barred under claim preclusion, if the present action is the aforementioned merits, or under result preclusion, if the present action is non the same merits, since the issue would accept been litigated in the prior proceedings. If, on the other hand, he did not succeed, and could not have succeeded, in raising the issue, then he is non barred under either doctrine. Merits preclusion does non bar litigation of issues which could not have been litigated, and issue preclusion only bars relitigation of problems really litigated.

21

In guild to be barred by issue preclusion, or by claim preclusion where the issue was litigated, the prior decision must have been on the merits of the issue. Bone, 82 Ill.2d at 286-87, 45 Sick.Dec. at 95, 412 North.E.second at 446; Morris, 96 Ill.App.3d at 153-54, 51 Ill.Dec. at 774, 421 North.E.2nd at 282; Rotogravure Service, Inc. v. R.Westward. Borrowdale Co., 77 Ill.App.3d 518, 524, 32 Ill.Dec. 762, 767-68, 395 N.E.2d 1143, 1148-49 (1st Dist.1979). In addition, the party against whom the prior judgment is asserted must have had an effective opportunity to litigate the issue in the prior proceedings. Gay v. Open Kitchens, 100 Ill.App.3d at 971, 56 Ill.Dec. at 261, 427 Due north.Due east.2nd at 341. For "while the purpose of the doctrine is to prevent a party from litigating the same issue twice, it should not be used to preclude a party from litigating the affair at all." Id. at 972, 56 Ill.Dec. at 262, 427 Due north.East.2d at 341-42. The party must take had a full and off-white opportunity to litigate the effect, and it must not be an injustice to apply the doctrine. Fred Olson Motor Service 5. Container Corp. of America, 81 Ill.App.3d 825, 37 Ill.Dec. 5, 401 N.Eastward.2d 1098 (1st Dist.1980). See Franciscy v. Jordan, 43 Ill.App.2d 344, 354-58, 193 N.Due east.2nd 219, 223-25 (1963). In this sense the doctrine is an equitable doctrine, and discipline to equitable principles. Gay 5. Open Kitchens, 100 Sick.App.3d at 971, 56 Ill.December. at 261, 427 Due north.E.2nd at 341. It "should only be applied as fairness and justice require." Rotogravure Service, Inc. v. R.W. Borrowdale Co., 77 Ill.App.3d at 525-26, 32 Ill.Dec. at 767, 395 N.E.2nd at 1149. Accord Fred Olson Motor Service, 81 Ill.App.3d 825, 37 Sick.Dec. 5, 401 North.E.2nd 1098.

22

The party asserting the preclusion bears the burden of showing with clarity and certainty what was determined by the prior judgment. Redfern, 111 Sick.App.3d at 377, 67 Ill.Dec. at 169, 444 N.E.second at 209; O'Neill v. DeLaney, 92 Ill.App.3d 292, 47 Ill.December. 947, 415 N.E.2d 1260 (1st Dist.1980); Gale v. Transamerica Corp., 65 Sick.App.3d 553, 22 Ill.Dec. 92, 382 N.E.second 412 (1st Dist.1978); Gonyo v. Gonyo, 9 Sick.App.3d 672, 292 N.Eastward.2d 591 (2d Dist.1973). This is a "heavy brunt of proof," Gale v. Transamerica Corp., 65 Ill.App.3d at 558, 22 Ill.Dec. at 96, 382 Due north.E.second at 416; a court cannot "invoke the rule of estoppel by verdict or res judicata on pure speculation every bit to the finding of the trial court in the prior litigation." Lemanski five. Lemanski, 87 Ill.App.2d 405, 409, 231 N.E.2d 191, 194 (2d Dist.1967), appeal dismissed and cert. denied, 393 U.South. xx, 89 S.Ct. 52, 21 50.Ed.2nd 21 (1968). To speculate on the grounds for the prior judgment would be to remove the brunt placed on the proponent. Redfern, 111 Ill.App.3d at 377, 67 Sick.Dec. at 169, 444 N.E.2d at 209.

23

We now apply these principles of Illinois law to the facts of this example equally we believe the courts of Illinois would. There is no doubtfulness the plaintiff tried to litigate the issue in the Commission proceedings and state courtroom review. At the Commission hearing he was told his proffered evidence was irrelevant and immaterial. On review, the excursion court establish the evidence clearly irrelevant. It was only at the appellate court level that plaintiff's offering of proof was deemed inadequate. This offer of proof, that two white officers involved in alleged thefts had been just suspended, clearly cannot exist said to have no "tendency to make the existence of any fact that is of consequence to the decision of the action more than likely or less probable than it would be without the prove," People v. Gratuitous, 94 Ill.2d 378, 413, 69 Ill.Dec. 1, 16, 447 N.Eastward.2d 218, 235, cert. denied, --- U.S. ----, 104 S.Ct. 200, 78 Fifty.Ed.2d 175 (1983). Such a statement would have to be fabricated in order to detect that the proffer was and then inadequate that the bear witness could be ruled inadmissible as irrelevant. To state, as the Illinois Appellate Courtroom seems to accept, that the prove regarding the white officers was inadequate because the plaintiff could not show that they had been more lightly treated "in the confront of established guilt" is to require that all relevant evidence be conclusive. Such an approach would deem all non-conclusive evidence irrelevant, even if it has some tendency to brand some fact of consequence to the activeness more or less probable. That is not the law of relevancy in Illinois. People v. Free, 94 Sick.2d at 413, 69 Ill.Dec. at 16, 447 N.E.second at 235 (evidence is relevant if information technology has "whatever tendency to make any fact that is of result to the conclusion of the action more likely or less probable than it would be without the evidence"); People v. Monroe, 66 Ill.2d 317, 322, 5 Ill.Dec. 824, 826, 362 N.E.2d 295, 297 (1977) (same). Accord FED.R.EVID. 401. Finally, we note that the Illinois Appellate Courtroom held that there was crusade for discharge "regardless of whether other officers had received different treatment," and that McDonald and McDonnell Douglas, which hold that theft may be a legitimate ground for discharge but not for racial bigotry, were "inapplicable to the instant situation" because they were Championship 7 cases.

24

Nosotros conclude that defendants have not sustained their burden of showing with clarity and certainty that the issue was or could accept been determined by the prior judgment. We believe that this burden was insurmountable, because we believe plaintiff was prevented from presenting his bear witness on the mistaken theory that racial discrimination was irrelevant to his discharge. We cannot interpret the state courtroom proceedings equally existence an case where a litigant tried his issue and failed on the claim due to an inability to offering sufficient, or any, show. We also conclude that the Illinois courts take a policy not to utilize claim or issue preclusion under circumstances where to do so would be inequitable or unjust--either because the party against whom the prior judgment is asserted did not have a off-white opportunity to litigate the event or because the footing of the prior courtroom judgment is not articulate and disarming. We therefore believe that the Illinois courts would not notice the nowadays action (or an analogous i based on p two-102 of the Illinois Human Rights Act, ILL.REV.STAT. ch. 68, p ane-101 et seq. (1983)) to exist barred by either claim or issue preclusion doctrine.

25

Appellees argue that this result is foreclosed by Kremer v. Chemical Structure Corp., 456 U.South. 461, 102 S.Ct. 1883, 72 L.Ed.second 262 (1982), and by our recent decision in Unger v. Consolidated Foods Corp., 693 F.2d 703 (7th Cir.1982), cert. denied, 460 U.Due south. 1102, 103 S.Ct. 1801, 76 50.Ed.second 366 and --- U.Due south. ----, 104 Due south.Ct. 549, 78 L.Ed.second 723 (1983), both cases in which a state court judgment on review of an agency determination was held to preclude a federal civil rights arrange. Neither Kremer nor Unger stands for the proposition that any state court decision reviewing an administrative action necessarily bars federal adapt. In both Kremer and Unger the plaintiff (different Mr. Jones here) was proceeding on administrative review of a decision rendered by a local human rights agency which was charged with responsibility for the very subject matter the plaintiff wanted to heighten in federal court, employment discrimination. Plaintiffs Kremer and Unger thus obtained agency determination of the issue of bigotry and the country court on administrative review addressed the adequacy of the bureau's conclusion. Here, in contrast, Mr. Jones tried to raise the issue of employment bigotry but was prevented from doing and so. Further, in both Kremer and Unger, the state court judgment would have been preclusive under state law if the plaintiff had tried to bring his or her federal claim in state court. Kremer, 456 U.S. at 467, 102 S.Ct. at 1890; Unger, 693 F.2d at 706. Here, however, the state courtroom judgment is not preclusive under state law. Wakeen v. Hoffman Business firm, Inc., 724 F.2d 1238 (7th Cir.1984), may be distinguished on the same grounds.

26

Somewhat surprisingly, neither party cites Lee v. Urban center of Peoria, 685 F.2d 196 (7th Cir.1982). In that example a law officer was discharged when he falsely testified that he was domicile in bed on an occasion when he had in fact been involved in a dispute at the Police Commissioner's office. His Secs. 1981 and 1983 suit was dismissed every bit res judicata. The plaintiff made no attempt to raise his race discrimination charge before the authoritative board, and the circuit court refused to take prove on the issue when he attempted to raise it for the first time on review. We held that he could have raised the defense of racial discrimination, simply did not exercise so. 685 F.2d at 200. Here, nonetheless, Mr. Jones tried to enhance his defense, merely the Commission and state courts would non consider it. Therefore, we do non think Lee forecloses the arroyo we take here.

4.

27

Nosotros do non hateful to imply that retail theft is not a serious criminal offence, or to advise that a police department is compelled to retain those who commit such offenses. Maybe the Alton Police Department should be firing more people, not fewer. It is the law, however, that whatever sanctions a constabulary department considers appropriate must be applied in a nondiscriminatory manner.

28

We have concluded that Jones's employment discrimination action would not be barred under Illinois rules of preclusion. Since we are required to give the same effect to the prior land proceeding in federal court as it would have in Illinois, we further conclude that Jones is not barred from bringing this action in federal court. Therefore we Opposite the social club of the district court, and REMAND the case for further proceedings consistent with this opinion.

moatsstinand.blogspot.com

Source: https://openjurist.org/757/f2d/878/jones-v-city-of-alton-illinois

Share this post