Austin Ware v. Illinois Department of Corrections

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 4, 2020
Decided September 3, 2020
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 19-3521
AUSTIN WARE,
Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 19 C 3139
John Z. Lee,
Judge.
O R D E R
Austin Ware, an employee of the Illinois Department of Corrections (“IDOC”),
appeals the district court’s dismissal of his second suit alleging discrimination,
harassment, and retaliation by his employer and others. Because the district court
correctly held that the doctrine of claim preclusion barred Ware’s second action, we
affirm its judgment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19-3521 Page 2
I
Ware is an African-American man in his 70s who, at times relevant to this suit,
worked for IDOC as a parole commander. He also was a member of the public labor
union, American Federation of State, County, and Municipal Employees Council 31
(“AFSCME Council 31”), and served as an executive officer of his local union.
Ware has filed two lawsuits, the first in 2018 and the second in 2019. The 2018
suit (Ware I) went to judgment first. In it, Ware and Local Union 3436 brought a putative
class action against IDOC, four Department employees, and AFSCME Council 31 and
one of its employees. Ware alleged that beginning in January 2016, the Department
“targeted, harassed, and punished” Ware and his coworkers “solely based on their race,
their association with Local [Union] 3436, and their right to speak about matters of
public concern.” He added that individual defendants were also involved in the
discipline and retaliation directed toward Ware and the putative class members, and
that these defendants conspired with AFSCME Council 31 to discriminate against the
putative class.
In January 2019, Ware and Local 3436 filed a first amended complaint. The
defendants moved to dismiss, but the plaintiffs asked for an opportunity to file another
amended complaint, and the district court granted their motion. On May 10, 2019, Ware
and Local 3436 filed a second amended complaint. The defendants moved again to
dismiss the suit, arguing that Ware’s latest amended complaint still failed to state a
claim. After Ware and the local union did not respond to the motion and then missed a
status hearing, on July 17, 2019, the court dismissed the case with prejudice for failure to
prosecute and entered judgment for the defendants. Although the plaintiffs moved to
vacate the dismissal two months later, they were unsuccessful. They did not appeal
either from the underlying judgment or the denial of their motion to vacate.
On May 9, 2019 (the day before he filed the second amended complaint in
Ware I), Ware filed Ware II, the case that underlies this appeal. He again sued IDOC and
the same four Department employees, this time adding age discrimination to his
previous allegations of race discrimination and retaliation for “opposing and
complaining about unlawful conduct.” He specified three main instances of
discrimination and retaliation that began in June 2017. First, he contended that the
defendants discriminated against him for his union association and for “speaking out
about the disparate treatment of himself and other older and non-white [Department]
employees.” Second, he charged that the defendants falsely accused him of, and briefly
suspended him for, allowing unauthorized vendors to attend a staff meeting in July

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No. 19-3521 Page 3
2017. Third, he accused the defendants of subjecting him to unwarranted discipline in
late 2017 when they suspended him for baseless charges of case mismanagement.
The district court granted the defendants’ motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). It ruled that Ware I had reached a judgment on the merits,
the allegations in Ware II arose from the same transaction as those in Ware I, and both
lawsuits involved “the same litigants.” With the three elements of claim preclusion met,
the court dismissed the case with prejudice.
II
The district court came to the right result. We review dismissals of claims
blocked by the defense of claim preclusion (referred to in the district court’s opinion as
res judicata) de novo. Bell v. Taylor, 827 F.3d 699, 706 (7th Cir. 2016). Although preclusion
is an affirmative defense best addressed under Federal Rule of Civil Procedure 12(c), the
use of Rule 12(b)(6) here “is of no consequence” because the district court had before it
everything necessary to rule on the defense. Walczak v. Chi. Bd. of Educ., 739 F.3d 1013,
1016 n.2 (7th Cir. 2014) (quoting Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010)). Claim
preclusion applies to matters previously resolved as well as to issues or theories that
could have been raised but were not. See Lucky Brand Dungarees, Inc. v. Marcel Fashions
Group, Inc., 140 S. Ct. 1589, 1594–95 (2020); Matrix IV, Inc. v. Am. Nat. Bank & Tr. Co. of
Chi., 649 F.3d 539, 547 (7th Cir. 2011). As we put it in one opinion, “[c]laim preclusion
under federal law has three ingredients: a final decision in the first suit; a dispute
arising from the same transaction (identified by its operative facts); and the same
litigants (directly or through privity of interest).” United States ex rel. Lusby v. Rolls-Royce
Corp., 570 F.3d 849, 851 (7th Cir. 2009) (citations and quotation marks omitted). (Ware
acknowledges that the first element is satisfied: He correctly concedes that the district
court’s dismissal of Ware I for want of prosecution was a final judgment on the merits.)
Ware disputes on two grounds the applicability of the third element, identity of
the parties. He first argues that claim preclusion cannot apply because Ware I named
additional defendants (AFSCME Council 31 and an AFSCME employee) not sued in
Ware II, and so he concludes that the parties in the suits are different. But the presence
of additional defendants in the earlier lawsuit is irrelevant. The purpose of the defense
of claim preclusion is to prevent parties from relitigating claims against those whom
they previously sued, as Ware is attempting to do here. See, e.g., Czarniecki v. City of
Chicago, 633 F.3d 545, 548 (7th Cir. 2011) (“The fact that the second lawsuit does not
include [a party from the first lawsuit] as a defendant does not affect the analysis.”).
Second, Ware argues that the parties are different because Ware I was a putative
class action whereas he brought Ware II as “an individual action.” That is a distinction

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without a difference. As the named plaintiff in Ware I, Ware necessarily brought claims
“individually” as well as “on behalf of others similarly situated.” Ware’s position as a
putative class representative and individual plaintiff in Ware I and as the sole plaintiff in
Ware 2 thus satisfies the party identity requirement of claim preclusion. See, e.g.,
Kilburn-Winnie v. Town of Fortville, 891 F.3d 330, 333 (7th Cir. 2018); White v. Colgan Elec.
Co., 781 F.2d 1214, 1216 (6th Cir. 1986).
Ware next contends that dismissal on the basis of claim preclusion was improper
because the “causes of action” in Ware I and Ware II are distinct. Ware characterizes
Ware I as a class suit “involving due process violations with organizational relief being
sought,” while Ware II is “an individual action with claims based on age, race,
retaliation, and speech in violation of the Plaintiff’s First Amendment rights.” The
accuracy of these characterizations is questionable, but also irrelevant. To determine
whether claims in two suits share an “identity” for purposes of federal claim preclusion,
the key question is not the legal theory advanced, but instead whether the two suits
arise out of “a common core of operative facts.” Bell, 827 F.3d at 706 (quoting Roboserve,
Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1034 (7th Cir. 1997)); accord Kilburn-Winnie,
891 F.3d at 333.
The claims in both Ware I and Ware II arise from the same set of operative facts,
so the second element is met. In both suits, Ware alleges that IDOC improperly
targeted, harassed, and disciplined him based on his race, his association with the local
union, and in retaliation for speaking on matters of public concern. Furthermore, both
operative complaints allege actions from the same period. In Ware I, the alleged
misconduct occurred after January 2016, and Ware II sets the instances of harassment no
earlier than 2017. True, the complaint in Ware II gives more details about the
defendants’ alleged discrimination, harassment, and retaliation. But this greater level of
detail is subsumed by the general allegations of the defendants’ treatment of Ware
during the same period in Ware I: the operative facts are the same. See Cole v. Bd. of Trs.
of Univ. of Ill., 497 F.3d 770, 773 (7th Cir. 2007) (concluding that claim preclusion barred
a second suit when “[b]oth Complaints allege[d] roughly the same series of events …
[and t]here [was] no indication that the [defendant’s] defrauding or harassing conduct
described in the two suits were in any way distinct.”), abrog’d on other grounds by Lusby,
supra.
Finally, this case exemplifies the importance of applying claim preclusion to
prevent duplicative litigation. All the incidents described in Ware II occurred months
before Ware filed suit in Ware I in 2018, and therefore Ware could have included them
in Ware I. Even if he did not think to do so, he had another chance to include those

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allegations during the life of Ware I. He filed his last amended complaint in Ware I and
his new complaint in Ware II within one day of each other. Yet he split his claims on the
same set of facts between the two suits. Splitting claims into duplicative lawsuits is the
exact litigation tactic that claim preclusion is designed to prevent. See, e.g., Barr v. Bd. of
Trs. of W. Ill. Univ., 796 F.3d 837, 840 (7th Cir. 2015).
We AFFIRM the judgment of the district court.

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