White v. Elrod, 85-2267

• Decision Date: 08 April 1987
• Docket Number: No. 85-2267,85-2267
• Citation: 816 F.2d 1172
• Parties: 60 Fair Empl.Prac.Cas. 1495, 43 Empl. Prac. Dec. P 37,047 Thomas WHITE, et al., Plaintiffs-Appellants, v. Richard J. ELROD and Phillip Hardiman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1172

816 F.2d 1172

60 Fair Empl.Prac.Cas. 1495,

43 Empl. Prac. Dec. P 37,047

Thomas WHITE, et al., Plaintiffs-Appellants, v. Richard J. ELROD and Phillip Hardiman, Defendants-Appellees.

No. 85-2267.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 5, 1986.

Decided April 8, 1987.

Ronald S. Samuels, Washington Kennon Hunter & Samuels, Chicago, Ill., for plaintiffs-appellants.

Leonard N. Foster, Asst. State's Atty., Chicago, Ill., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges, and KANNE, District Judge. ^*

POSNER, Circuit Judge.

This appeal by jail guards from a decision by the district court dismissing their civil rights suit under 42 U.S.C. Sec. 1983 grows out of an illegal strike in 1980. The guards were employed by the Cook County Corrections Department, which is under the jurisdiction of the Sheriff of Cook County. At the time this was Richard Elrod. The department's director was Phillip Hardiman. Hardiman and about 90 percent of the department's staff were black. The jail guards, who made up the bulk of the staff, were angry because they were paid less than deputy sheriffs, who are also under the jurisdiction of the sheriff but do not work in the corrections department. A much higher fraction of guards than of deputy sheriffs was black, and many of the blacks felt that the disparity in wages reflected racial prejudice. When the department refused to raise the wages of the jail guards, a number of them organized a "sick out" or "blue flu" work stoppage. For 10 days, more than 85 percent of the 900 guards called in sick, and during this period the 5,000 inmates of the Cook County Jail were inadequately guarded. Hardiman and Elrod wanted to fire all the strikers, but they realized that if they did so the security problem in the jail would become catastrophic before replacements for the fired guards could be hired and trained. So they decided to fire just those guards who had organized or "exacerbated" the strike. They sent letters to 34 guards, most of whom were black (at least two, and maybe more, were white, however), suspending them for "desertion of post to the jeopardy of security" until the Cook County Police and Corrections Merit Review Board determined the merit of this charge. The work stoppage ended.

Twenty-two of the 34 guards who had been suspended brought this suit against Elrod and Hardiman. They charged that the suspensions constituted selective prosecution in violation of the equal protection clause, had been racially motivated (and hence violated the equal protection clause in an additional sense), and had been in retaliation for the plaintiffs' exercise of their free speech. Sixteen of the original plaintiffs remain, the others having defaulted along the way. Two of the 16 were reinstated by the Merit Board with back pay, the Board having dismissed the charges against them. Two others pleaded guilty before the Board and were reinstated without back pay.

Eventually this case was tried. Meanwhile, 11 of the 16 remaining plaintiffs, having failed to obtain reinstatement, had appealed the Merit Board's action to the Circuit Court of Cook County, which reversed. (The sixteenth plaintiff had also been found guilty by the Board, but he did not seek judicial review.) The Illinois Appellate Court, however, reversed the circuit court and reinstated the Merit Board's decision. The appellate court's decision was handed down after the bench trial in the present case was over and while the district judge was preparing his findings of fact and conclusions of law. The defendants showed the decision to the judge, and he held that the present suit was barred by res judicata, and ordered the complaint dismissed.

The ground of decision is questionable with regard to the two plaintiffs who prevailed before the Merit Board. The defendants point out that the Board rejected all of the plaintiffs' constitutional claims, and they argue that this rejection should preclude these two plaintiffs as well as the others from raising the claims in this suit, even though the Board dismissed the defendants' charges against these two. There are two replies to this argument. The first, well established in Illinois law but rather question-begging, is that a finding that is not essential to the judgment has no collateral estoppel effect. Decatur Housing Authority ex rel. Harlan E. Moore & Co. v. Christy-Foltz, Inc., 117 Ill.App.3d 1077, 1082, 73 Ill.Dec. 519, 523, 454 N.E.2d 379, 383 (1983). A finding rejecting the plaintiffs' constitutional claims was not essential to a judgment reinstating them. The second reply, more functional but not the subject of a reported Illinois case, is that when a decision of a tribunal of first instance is subject to appeal, the decision cannot be given collateral estoppel (or res judicata) effect if the party sought to be bound could not have appealed it, for example because he had won. See 1B Moore's Federal Practice p 0.416, at p. 515 (2d ed. 1984); 18 Wright, Miller & Cooper, Federal Practice and Procedure Secs. 4421, 4433 (1981). The idea is that the finding is not sufficiently reliable, without the opportunity for appellate review of it, to be made incontestable in a subsequent suit.

Either principle would defeat the defendants' argument, except that the Merit Board apparently did not give the two plaintiffs whom it reinstated complete relief, and presumably they could have appealed from this partially adverse outcome. The record does not make clear whether the shortfall was trivial, in which event we don't suppose the failure to appeal could be thought important on the question of collateral estoppel, or significant, in which event it would be important; a party should not be allowed to pocket the favorable part of the decision and bring a fresh suit to upset the unfavorable part. In view of these doubts, and our confidence about an alternative ground (of which more later) for upholding the district court's decision, we decline to apply collateral estoppel to these two plaintiffs.

Their ground for resisting collateral estoppel is not, however, available to any of the other plaintiffs, including the two who pleaded guilty and were then reinstated. By pleading guilty they waived any right to challenge their guilt on appeal. Their situation is the same as that of parties who, having a right of appeal, allow the deadline for appealing to expire without filing an appeal. The judgment of the trial court in such a case has the same preclusive effect as if it had been affirmed.

The other plaintiffs were able to appeal and all but one did, but they argue that they were forbidden to introduce evidence of their constitutional claims before the Merit Board. It is true that the Board took the position that it need not and would not consider those claims. Nevertheless, in appealing to the circuit court the plaintiffs argued both the selective-prosecution and free-speech claims, and they continued to do so in the appellate court, which expressly rejected both claims. Neither decision refers to the remaining constitutional claim (racial discrimination).

We can find no basis in Illinois law for the Merit Board's refusal to consider the plaintiffs' federal constitutional grounds for reinstatement. The statute under which the Board operated provides that a correctional officer may not be fired except for cause, after written charges have been filed by the Sheriff of Cook County and after an opportunity for a hearing at which the officer is entitled to a "full opportunity to be heard ... and produce proof in his defense." Ill.Ann.Stat. ch. 125, Sec. 62. It would violate the supremacy clause for the Board to take the position that the exercise of federal constitutional rights is "cause" for being fired; nor does anyone...