Lisa Barr v. Board of Trustees of Western , 796 F.3d 837 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2063
LISA J. BARR,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF
WESTERN ILLINOIS UNIVERSITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 10-cv-1199 — Michael M. Mihm, Judge.
____________________
ARGUED SEPTEMBER 29, 2014 — DECIDED AUGUST 12, 2015
____________________
Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Lisa Barr was a tenure-track journal-
ism professor at Western Illinois University from the fall of
2007 through the spring semester 2010, when the University
declined to retain her for the next academic year. Barr con-
tends that the nonrenewal decision was in retaliation for
complaints she made in 2008 about racial discrimination at
the school. In March 2010 she sued the University alleging
2 No. 13-2063
retaliation in violation of Title VII. Service of this suit was
never perfected, however.
A few months later, in June 2010, Barr filed a second law-
suit—this time against the University’s Board of Trustees—
alleging that the decision not to renew her contract was both
retaliatory and the product of age discrimination. In the
meantime, a magistrate judge recommended that the district
court dismiss Barr’s first suit for failure to prosecute. And so
it was dismissed, with prejudice, in August 2010.
During discovery in the second case, the Board of Trus-
tees learned of Barr’s prior lawsuit. The Board promptly
amended its answer to raise res judicata as an affirmative
defense. A motion for judgment on the pleadings soon
followed. Barr responded that her first suit didn’t end in a
judgment on the merits and the claims differed in the two
cases. The district court rejected these arguments, granted
the Board’s motion, and dismissed the case on res judicata
grounds.
We affirm. A dismissal for failure to prosecute “operates
as an adjudication on the merits,” FED. R. CIV. P. 41(b), and
Barr’s two suits involved the same parties and core of opera-
tive facts. Res judicata was properly applied.
I. Background
Barr joined the faculty at Western Illinois University as
an assistant professor of journalism in the 2007–2008 aca-
demic year. As a tenure-track professor, she was subject to
annual retention evaluations through her sixth year of
teaching, at which point she could apply for tenure.
No. 13-2063 3
In 2008 Barr complained that the University refused to
hire a professor of Nigerian descent because of his race. She
contends that the University responded to this complaint by
harassing her and subjecting her to unfavorable working
conditions. On November 19, 2009, she lodged a retaliation
complaint with the Illinois Department of Human Rights.
The Equal Employment Opportunity Commission (“EEOC”)
declined to take action and in December 2009 issued a right-
to-sue letter. That same month the University informed Barr
that she would not be reappointed the following academic
year.
On March 3, 2010, just before the 90-day window to sue
closed, Barr filed a pro se complaint against the University
alleging that it violated her rights under Title VII of the Civil
Rights Act, 42 U.S.C. §§ 2000e et seq. In it she claimed that the
nonrenewal was in retaliation for her complaint about racial
discrimination at the University.1
1 Barr’s statement of her claim was labeled “Retaliation for EEOC-
protected activities” and stated that she was “[n]ot retained/allowed to
advance to PY4 of tenure track process, despite having met retention
criteria.” She elaborated:
I was non-renewed—not allowed to advance to PY4 of
tenure track process, despite having met retention crite-
ria. I was and remain an exemplary, high-achieving em-
ployee, whose immediate supervisor wanted retained
[sic].
Other employees have advanced much further than I
through the tenure track process with far less-exemplary
performance. This, I will show, was retaliation for
EEOC-protected activities.
4 No. 13-2063
Two days later Barr filed a second charge of retaliation
with the Illinois Department of Human Rights. This one
alleged that the University retaliated against her based on
her prior EEOC charge; she also claimed that her contract
was not renewed because of sex and age discrimination. On
March 30 the EEOC issued a right-to-sue notice on these
claims. On June 25 Barr filed a second suit against the Uni-
versity’s Board of Trustees alleging claims for retaliation
under Title VII and age discrimination under the Age Dis-
crimination in Employment Act of 1967, 29 U.S.C. §§ 621et seq. In this second suit, Barr was represented by counsel.
While all this transpired, the first case languished with-
out service on the University. Accordingly, on August 4,
2010, a magistrate judge recommended that the district court
dismiss the case for failure to prosecute. The magistrate
judge noted that Barr had failed to serve the University
within the 120-day period specified in Rule 4(m) of the
Federal Rules of Civil Procedure. Indeed, after she missed
the July 1 deadline, the magistrate judge had reminded Barr
of the service requirement and ordered a status report by
July 27. Barr neither responded nor served the University, so
the magistrate judge recommended dismissal. On August 25
the district court dismissed the first suit, with prejudice, for
failure to prosecute.
As discovery proceeded in the second case, the Board of
Trustees learned about the first suit and amended its answer
to assert res judicata as an affirmative defense. The Board
then moved for judgment on the pleadings, see FED. R. CIV.
P. 12(c), arguing that res judicata blocked the second suit.
Barr objected, pointing out that when she filed her first suit,
she did not have a right-to-sue letter in hand on the claims
No. 13-2063 5
alleged in the second. She also argued that the elements of
res judicata were not satisfied.
The district court rejected these arguments, noting that
Barr easily could have amended her first complaint to
include the age- and sex-discrimination claims contained in
her second EEOC charge once the second right-to-sue letter
arrived. The court held that res judicata applied because
Barr’s first suit resulted in a final judgment on the merits
and the two cases involved the same parties and the same
core of operative facts. The court accordingly granted the
Board’s motion and entered judgment dismissing the case.
II. Discussion
We review de novo the district court’s order granting
judgment on the pleadings under Rule 12(c). FED. R. CIV.
P. 12(c); Hayes v. City of Chicago, 670 F.3d 810, 813 (7th Cir.
2012).
“Under res judicata, a final judgment on the merits of an
action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”
Allen v. McCurry, 449 U.S. 90, 94 (1980). The aim of the
doctrine is to “relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and, by
preventing inconsistent decisions, encourage reliance on
adjudication.” Id. “Res judicata promotes predictability in
the judicial process, preserves the limited resources of the
judiciary, and protects litigants from the expense and dis-
ruption of being haled into court repeatedly.” Palka v. City of
Chicago, 662 F.3d 428, 437 (7th Cir. 2011).
6 No. 13-2063
Res judicata blocks a second lawsuit if there is (1) an
identity of the parties in the two suits; (2) a final judgment
on the merits in the first; and (3) an identity of the causes of
action. Id. Of the third element, we have said that “two
claims are one for purposes of res judicata if they are based
on the same, or nearly the same, factual allegations.”
Hermann v. Cencom Cable Assocs., 999 F.2d 223, 226 (7th Cir.
1993); see also Adams v. City of Indianapolis, 742 F.3d 720, 736
(7th Cir. 2014) (“Whether there is an identity of the cause of
action depends on ‘whether the claims comprise the same
core of operative facts that give rise to a remedy.’” (quoting
Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d
539, 547 (7th Cir. 2011))); Czarniecki v. City of Chicago,
633 F.3d 545, 549 (7th Cir. 2011) (There is res judicata where
“allegations in [two lawsuits] are essentially the same.”).
There is no dispute here that the first two elements of res
judicata are satisfied. Although Barr sued the University in
the first suit and the University’s Board of Trustees in the
second, the nominal difference in the defendants has no
significance; everyone agrees there is an identity of parties.
And the first suit was dismissed for failure to prosecute,
which operates as a merits judgment. See FED. R. CIV. P. 41(b)
(involuntary dismissal for failure to prosecute “operates as
an adjudication on the merits”); see also Tartt v. Nw. Cmty.
Hosp., 453 F.3d 817, 822 (7th Cir. 2006) (holding that dismis-
sal under Rule 41(b) for failure to prosecute “amounts to a
final judgment on the merits for res judicata purposes”). The
only dispute is whether there was an identity in the causes
of action in the two suits. Barr says there wasn’t because
each suit rested on different legal theories and factual predi-
cates—as authorized by the separate EEOC right-to-sue
notices.
No. 13-2063 7
This argument is squarely foreclosed by a long line of our
decisions applying preclusion doctrine to block just this kind
of claim-splitting in the employment-discrimination context.
See, e.g., Palka, 662 F.3d at 437–38; Czarniecki, 633 F.3d at 549–
51; Hermann, 999 F.2d at 225. The basic principle underlying
these cases is that a plaintiff cannot evade preclusion by
“identify[ing] a slightly different cause of action with one
element different from those in the first, second, or third
lawsuits between the same parties arising from the same
events.” Czarniecki, 633 F.3d at 550. And the requirement to
exhaust administrative remedies is no excuse for claim-
splitting in this context. We’ve repeatedly explained that a
plaintiff in this situation—that is, a discrimination claimant
who is waiting for a right-to-sue letter on new claims that
are factually linked to an earlier suit—can easily ask the
district court to stay the first case until the EEOC letter
arrives. See, e.g., Palka, 662 F.3d at 438; Czarniecki, 633 F.3d at550–51.
These principles apply here to preclude Barr’s second
suit. Yes, the second case is a little different from the first in
that it complains about age discrimination and presents a
different theory of retaliation. Yes, Barr needed to get her
right-to-sue letter before she could bring claims in the sec-
ond suit. But both suits arise out of the same main event: the
University’s decision not to retain Barr on its faculty.
Barr insists that the first case was about harassment, not
termination. But she’s stuck with her complaint, which, as
we’ve noted, was indeed based on her termination or “non-
renewed” status. True, it mentioned (though failed to attach)
her EEOC charge relating to harassment, but the cause of
action actually alleged in the complaint stemmed from the
8 No. 13-2063
nonrenewal of Barr’s faculty appointment. And even if her
legal theory changed between the first and second suits, both
cases alleged wrongful nonrenewal and thus shared the
same core factual basis for res judicata purposes. See, e.g.,
Palka, 662 F.3d at 437 (“[T]here is an identity of the causes of
action because the Title VII claims are premised on the
Palkas’ termination by their respective municipal employ-
ers—the same transactions at issue in their § 1983 cases.”);
Smith v. City of Chicago, 820 F.2d 916, 918 (7th Cir. 1987) (“We
have regarded as the law of this [c]ircuit that ‘[e]ven though
one group of facts may give rise to different claims for relief
upon different theories of recovery, there remains a single
cause of action.’” (quoting Lee v. City of Peoria, 685 F.2d 196,
200 (7th Cir. 1982))).
Barr argues that because her first suit was dismissed for
lack of service, the policies underlying res judicata aren’t
implicated here. She points out that the use of judicial
resources in the first case was “modest” and the University
hasn’t actually had to defend multiple rounds of litigation.
But the rule against claim-splitting applies even if the plain-
tiff’s first suit was short-lived. See Palka, 662 F.3d at 437(explaining that claim-splitting is “a litigation tactic that res
judicata doctrine is meant to prevent”).
Finally, Barr reminds us that she filed her first suit with-
out the benefit of counsel. But she soon obtained a lawyer,
who filed the second suit two months before the first suit was
dismissed. If, as Barr claims, res judicata is a legal “gotcha
game” for unrepresented plaintiffs, the “gotcha” part ended
when Barr hired an attorney to pursue her case against the
University.
No. 13-2063 9
We close by noting that Barr’s first suit probably should
have been dismissed without prejudice. See Lowe v. City of
East Chicago, Ind., 897 F.2d 272, 275 (7th Cir. 1990). But the
remedy for that possible error was a motion under Rule 59
of the Federal Rules of Civil Procedure or an appeal. For
reasons we don’t know, Barr and her attorney pursued
neither course and instead plowed ahead with the second
lawsuit. So the dismissal of Barr’s first suit remains an
undisturbed final decision on the merits, and thus res judica-
ta precludes the second case.
AFFIRMED.