Kirk v. Board of Educ. of Bremen Community High School Dist., No. 228, Cook County, Ill.

• Decision Date: 22 January 1987
• Docket Number: Nos. 84-2519,84-2520,s. 84-2519
• Parties: 42 Fair Empl.Prac.Cas. 1473, 42 Empl. Prac. Dec. P 36,787, 37 Ed. Law Rep. 1054 Leroy KIRK and Donald Stuart, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF BREMEN COMMUNITY HIGH SCHOOL DISTRICT, NO. 228, COOK COUNTY, ILLINOIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 347

811 F.2d 347

42 Fair Empl.Prac.Cas. 1473,

42 Empl. Prac. Dec. P 36,787, 37 Ed. Law Rep. 1054

Leroy KIRK and Donald Stuart, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF BREMEN COMMUNITY HIGH SCHOOL DISTRICT, NO. 228, COOK COUNTY, ILLINOIS, Defendant-Appellee.

Nos. 84-2519, 84-2520.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 11, 1986.

Decided Jan. 22, 1987.

Michael B. Erp, Katz, Friedman, Schurr & Eagle, Chicago, Ill., Irene L. Hill, EEOC-Appellate Services Div., Washington, D.C., for plaintiffs-appellants.

Alan T. Sraga, Scariano, Kula & Assoc., Chicago Heights, Ill., for defendant-appellee.

Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The primary question presented in this appeal is whether the district court erred in granting the defendant's motion to dismiss on the ground that the plaintiffs' action under Title VII of the Civil Rights Act of 1964 was barred by the doctrine of res judicata. For the reasons stated below we find that the dismissal ¹ was improper. Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

I.

Plaintiffs LeRoy Kirk and Donald Stuart were formerly employed as tenured instructors at high schools operated by the defendant, the Board of Education of Bremen Community High School District, No. 228, Cook County, Illinois ("the Board"). Both are male. Stuart taught health, physical education and driver education and Kirk taught physical education. As part of a reduction in force, the plaintiffs and six other teachers were laid off by the Board on March 22, 1982. Some female faculty members with less seniority were retained. The stated reason for the Board's departure from seniority order in laying off the plaintiffs was their inability to supervise female high school students when the students were in the locker room.

After their terminations, both plaintiffs filed charges of sex discrimination with the Illinois Equal Employment Opportunity Commission (the "Illinois EEOC"). Stuart also filed a grievance with the Board asserting sex discrimination in violation of the collective bargaining agreement then in force between the Board and the teacher's union, the Joint Faculty Association for Bremen District No. 228 (the "JFA" or "Union"). In March of 1982, the Union filed grievances with the Board on behalf of the discharged teachers. Both plaintiffs also filed charges of sex discrimination with the United States Equal Employment Opportunity Commission (the "United States EEOC") on July 6, 1982.

On March 30, 1982, the Union filed a suit against the Board in the Circuit Court of Cook County, Illinois, Chancery Division. The suit sought (1) an injunction against the terminations, and (2) either a declaration that the Board's action violated the public hearing requirement of Ill.Rev.Stat., Ch. 122, p 24-12 (Smith-Hurd 1981), ² or an order compelling arbitration. The Cook Circuit Court ordered the parties to proceed with arbitration.

Arbitration began on an expedited basis in August of 1982. The parties agreed at the outset not to litigate the sex-discrimination issues and to allow those claims to proceed in other fora. The Stuart grievance, which charged sex discrimination, was withdrawn by agreement of the parties. During arbitration, the dispute was narrowed by agreement of the parties to these questions: (1) whether the Board's termination action was based on economic necessity, and, if so, (2) whether the Board violated the collective bargaining agreement by failing to hold a public hearing before terminating the teachers. ³ The arbitrator found that economic necessity was the basis for the dismissals and that they were void because the failure to conduct a public hearing violated the parties' contract and p 24-12. The arbitrator then ordered reinstatement of the dismissed teachers on August 20, 1982.

On October 22, 1982, the Board filed an action in the Circuit Court of Cook County, Illinois, Law Division, seeking to vacate the arbitrator's decision. ⁴ The plaintiffs in the instant action were named as defendants in the Board's complaint. On October 29, 1982, the defendants in the state action, including the plaintiffs in the instant case, answered the Board's complaint and counterclaimed for enforcement of the arbitrator's decision. The Cook Circuit Court granted summary judgment for the Union and the terminated teachers and ordered enforcement of the arbitrator's decision on January 17, 1983. On May 20, 1983, the Illinois Appellate Court affirmed. Board of Education v. Bremen District No. 228 Joint Faculty Association, 114 Ill.App. 1051, 70 Ill.Dec. 613, 449 N.E.2d 960 (1983), aff'd in part, rev'd in part, 101 Ill.2d 115, 77 Ill.Dec. 783, 461 N.E.2d 406 (1984).

The Appellate Court's affirmance noted that the arbitrator did not have the authority to order reinstatement, but upheld the decision on the theory that the arbitrator's decision that the terminations were void was binding, resulting in the rehiring of the teachers "by operation of law." 70 Ill.Dec. at 1057, 449 N.E.2d at 966. The Illinois Supreme Court affirmed in part and reversed in part. 101 Ill.2d 115, 77 Ill.Dec. 783, 461 N.E.2d 406. Both of the reviewing courts agreed that the arbitrator's substantive decision, that the terminations were void for lack of the requisite public hearing, was correct, or at most was a "mere error of judgment" not subject to court correction. 70 Ill.Dec. at 1056-57, 449 N.E.2d at 965-66, 77 Ill.Dec. at 786, 461 N.E.2d at 409. Both also held that the arbitrator was without authority to order reinstatement. 70 Ill.Dec. at 1057, 449 N.E.2d at 966, 77 Ill.Dec. at 786, 461 N.E.2d at 409. However, the Illinois Supreme Court disagreed with the conclusion of the Illinois Appellate Court that the teachers were rehired by operation of law and reversed on this point. 77 Ill.Dec. at 786, 461 N.E.2d at 409. Thus the plaintiffs achieved a somewhat pyrrhic victory, in that all of the fora where they pressed their claims agreed that their terminations were unlawful, yet they were ultimately denied any remedy.

While the state litigation was pending, the plaintiffs received their right-to-sue letters from the United States EEOC on May 25, 1983. On August 25, 1983, Stuart and Kirk filed separate suits in federal district court under Sec. 706(f)(1) of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. Sec. 2000e-5(f)(1) (1982). The plaintiffs alleged that the Board had excluded them from their teaching positions on the basis of sex, and they sought declaratory, injunctive, and monetary relief, as well as attorney's fees. The cases were consolidated and then stayed pending a decision from the Illinois Supreme Court on the propriety of the arbitrator's award. After the Illinois Supreme Court issued its decision, the Board moved to dismiss the plaintiffs' complaints on the ground that the doctrine of res judicata barred the Title VII claims. A magistrate recommended that the motion be denied. The district court disagreed, in an order issued August 6, 1984, relying on Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150 (7th Cir.1984), reversed, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985): ⁵

Since plaintiffs had a "full and fair opportunity" to utilize the available Illinois law against employment discrimination based on sex (e.g., Ill. Const. art. 1, Sec. 18 (1970); Ill.Rev.Stat. ch. 122, p 24-4 (1980); Ill.Rev.Stat. ch. 68, p 1-101 et seq. (1980) (Illinois Human Rights Act)), they are now barred, under Marrese, from raising employment discrimination under Title VII in the present case. Although plaintiffs were only seeking to enforce the arbitrator's decision in the state court litigation, this Court has no choice due to the law in this Circuit, but to grant defendant's motion to dismiss. ⁶

This appeal followed.

II.

The primary question in the case before us is whether the plaintiffs' failure to file a sex-discrimination count as a counterclaim in the suit initiated by the Board to set aside the arbitrator's award precludes this Title VII action. We find that there is no preclusion because, under Illinois law, at least two basic requirements for res judicata ⁷ are lacking, namely: (1) that the suits involve the same "cause of action"; and (2) that there was a decision on the merits.

To determine whether this Title VII action is barred by res judicata, we must of course look initially to federal law. One of the first acts passed by the newly constituted Congress following ratification of the Constitution directed the federal judiciary to accord the same full faith and credit to state-court judgments that would apply in the courts of the states in which they were rendered. Act of May 26, 1790, ch. 11, 1 Stat. 122. Its current version, codified at 28 U.S.C. Sec. 1738, provides, in pertinent part:

The records and judicial proceedings of any court of a State, Territory or Possession [of the United States], or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Such ... records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

28 U.S.C. Sec. 1738 (1982).

Thus, we must give the same preclusive effect to state-court judgments that those judgments would be given in the courts of the states from which they emerged. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985)...