Barr v. Bd. of Trs. of W. Ill. Univ.

• Decision Date: 12 August 2015
• Docket Number: No. 13–2063.,13–2063.
• Citation: 796 F.3d 837
• Parties: Lisa J. BARR, Plaintiff–Appellant, v. BOARD OF TRUSTEES OF WESTERN ILLINOIS UNIVERSITY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

796 F.3d 837

Lisa J. BARR, Plaintiff–Appellant
v.
BOARD OF TRUSTEES OF WESTERN ILLINOIS UNIVERSITY, Defendant–Appellee.

No. 13–2063.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 29, 2014.
Decided Aug. 12, 2015.

796 F.3d 838

James P. Baker, Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff–Appellant.

Nadine J. Wichern, Attorney, Office of the Attorney General, Chicago, IL, for Defendant–Appellee.

Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.

Opinion

SYKES, Circuit Judge.

Lisa Barr was a tenure-track journalism 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 contends 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 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 Trustees 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 operative 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 academic 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.

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

796 F.3d 839

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 University's Board of Trustees alleging claims for retaliation under Title VII and age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. In this second suit, Barr was represented by counsel.

While all this transpired, the first case languished without 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 alleged in the second. She also argued that the elements of res judicata were not...