text:
    Frances M. LANIGAN, Plaintiff, v. LaSALLE NATIONAL BANK, Robert Hunter, Kalman S. Lieberman, William M. Donne, Joyce E. Penner, Michael C. Birnkrant, Douglas P. Maloney, David H. Murphy and Joseph Stone, Defendants.
    No. 84 C 9676.
    United States District Court, N.D. Illinois, E.D.
    Feb. 21, 1985.

      James E. Beekley/Richard S. Schulttz, Chicago, 111., for plaintiff.
    Kalman S. Lieberman/Howard R. Slater, Slater & Lieberman, Jerome T. Murphy, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Frances M. Lanigan (“Lanigan”) brings this action against Kalman S. Lieberman (“Lieberman”) and several other defendants alleging that they breached the fiduciary duty owed to her under a trust agreement. Lieberman, who is also an attorney, has filed an appearance in this suit to represent himself and one other defendant, William M. Donne (“Donne”). Because of the substantial likelihood that Lieberman will be called as a major witness in this case, Lanigan hás moved the Court to disqualify Lieberman from acting as eounsel. For the reasons set forth below, the motion to disqualify is granted in part and denied in part.

In United States v. Tocco, 575 F.Supp. 100 (N.D.Ill.1983), we noted some of the basic principles governing a motion to disqualify an attorney.

A court has broad discretion in determining whether an attorney should be disqualified. Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976). Moreover, in resolving this question, any doubt is to be resolved in favor of disqualification. Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir.1975). Disqualification need not be based on an attorney’s improper acts, but may be premised on avoiding the appearance of impropriety and on preserving the highest ethical standards in the legal profession. Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir.1976); United States v. James, 555 F.Supp. 794 (S.D.N.Y.1983), affd, 708 F.2d 40 (1983).

Id. at 102. With these principles in mind, we shall consider the motion as it relates to Lieberman’s representation of both Donne and himself.

Lieberman’s Representation of Donne

Lanigan argues that Lieberman’s participation in this case as both an attorney and an important witness would violate Disciplinary Rules (“DR”) 5-101 and 5-102 of the Code of Professional Responsibility. These rules require, with certain exceptions, withdrawal of an attorney from participation in a case when it becomes obvious that he or a lawyer in his firm ought to be called as a witness. It is clear to the Court that Lieberman ought to be called as a witness in this case. Lieberman himself acknowledges that he has more knowledge of the documents and transactions underlying this suit than anyone else. Indeed, he has dealt with the property at the heart of this action for 27 years, and he is the only person who has been directly involved with the management of the property and the relations between the different groups of trust beneficiaries. Thus, unless he falls within one of the exceptions outlined in DR 5-101(B)(1) through (4), Lieberman should be disqualified from representing Donne.

The only exception arguably applicable to this case is that found in DR 5-101(B)(4), where disqualification “would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.” Donne claims that he would suffer substantial hardship in two ways: “great financial burdens in having to employ new counsel” and “by way of losing the extremely valueable [sic] services of Kalman S. Lieberman who knows every facet of the problems relating to the property.” We disagree. Donne may in fact incur greater attorney fee expenses by replacing Lieberman, but there is no reason to believe the difference will be great. This is especially so in light of the fact that this action was filed quite recently. Moreover, Lieberman’s special knowledge is not as relevant to actions he would take in his lawyerly capacity as it is to his distinctive value as a witness — the very role barred by DR 5-102. Norman Novell, Inc. v. Federated Department Stores, Inc., 450 F.Supp. 127, 130 (S.D.N.Y.1978); see also Draganescu v. First National Bank of Hollywood, 502 F.2d 550, 552 (5th Cir.1974), cert, denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). Therefore, Donne has failed to demonstrate any substantial hardship under exception (4) to DR 5-101(B), and Lieberman, and any other lawyer in his firm, shall be disqualified from representing Donne further in this action.

Lieberman’s Representation of Himself

Lieberman’s desire to represent himself is a much different matter. The right to self-representation in civil cases has a long history, first conferred by Section 35 of the Judicial Act of 1789. The right is now set forth in 28 U.S.C. § 1654, which provides that “[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel____” Although not enjoying the constitutional protection later afforded to the right of self-representation in criminal cases, the right in civil actions is one of high standing, “not simply a practice to be honored or dishonored by a court depending on its assessment of the desiderata of a particular case.” O’Reilly v. New York Times Co., 692 F.2d 863, 867 (2d Cir.1982).

Given his statutory right under Section 1654, Lieberman may continue to represent himself in this action. However, the rights of self-representation and representation by counsel may not be both exercised at the same time. Id. at 868. Thus, if Lieberman is to proceed pro se, he must immediately discharge any other lawyer who has filed an appearance on his behalf.

We also n’ote some practical concerns about Lieberman’s self-representation at trial, should this case reach that stage. Lanigan claims that Lieberman actually intends to represent a group of defendants while purporting to act pro se. Whether or not Lanigan’s concern is well founded, Lieberman’s representation of anyone other than himself in this case would be improper for the reasons discussed in the section above concerning Donne. Thus, the Court will ensure that Lieberman’s participation at trial is limited to activities necessary to represent himself fully. Lanigan also points out the logistical problems of Lieberman’s testifying at trial: he “cannot examine himself on the stand and be objective as to his testimony or the cross-examination of himself.” While this may be true, these problems apply equally to any pro se party and do not constitute grounds for disqualifying Lieberman from 'representing himself.

Accordingly, Lanigan’s motion to disqualify is granted in part and denied in part. It is so ordered.

      . DR 5-101 provides in pertinent part:
      (B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a Witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      (1) If the testimony will relate solely to an uncontested matter.
      (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      (4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.
      Similarly, DR 5-102(A) commands:
      If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).

      . Compáre this situation with that in U.S. ex rel. Sheldon Electric Co., Inc. v. Blackhawk Heating & Plumbing Co., Inc., 423 F.Supp. 486 (S.D.N.Y. 1976). The court in Sheldon found no substantial hardship from disqualification even though counsel had already expended about 450 hours in work in the current litigation.

      . Lanigan has recently brought to the Court's attention a letter indicating that Lieberman may also be authorized to represent defendant LaSalle National Bank in this case. Any such representation will not be permitted.


source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    Albert C. SELSOR, Plaintiff, v. CALLAGHAN & COMPANY, Defendant.
    No. 83 C 8147.
    United States District Court, N.D. Illinois, E.D.
    Feb. 25, 1985.

      Elliott M. Paul, Rosenfield, Kaplan & Halprin, Chicago, Ill., for plaintiff.
    Kenneth A. Jenero, Borovsky, Ehrlich & Kronenberg, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Callaghan & Company (“Callaghan”) fired Albert Selsor (“Selsor”) in 1983. Selsor was 58 years old then and had worked for Callaghan for 12 years. He filed this lawsuit against Callaghan, alleging that his dismissal violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621seq. The parties have completed discovery, and Callaghan has moved for summary judgment. For the reasons stated below, that motion is granted.

The following material facts are undisputed. Callaghan is a publisher of legal books and research materials. It hired Selsor in 1971 as Advertising Manager. Born February 21, 1925, Selsor was 46 when hired.

Before 1979 Callaghan was fairly small, holding a fraction of the legal publications market. In 1979 Callaghan became a subsidiary of “International Thomson Organisation Limited” (“Thomson”), which planned to expand Callaghan’s share of the legal publications market. In February of 1981, Callaghan hired Randy Cochran (“Cochran”) as Vice-President of Marketing to develop its policy of expansion. Cochran was a supervisor of Selsor. Cochran made many changes, and Selsor concedes that Cochran was effective.

Shortly after joining Callaghan, Cochran told Selsor that he respected the years of service Selsor had given to the company, and that he was looking forward to using his experience. In June of 1981, Cochran evaluated Selsor. Selsor received a satisfactory evaluation, which contained both praise and suggestions for improvement. In particular, Cochran felt that Selsor needed to solicit competitive bids for advertising and become more cost effective. Among Selsor’s strong points were his “experience with Callaghan” and his “attitude.” Following this evaluation, Cochran told Selsor that he would monitor Selsor’s performance concerning cutting costs, and that this was considered an important part of Selsor’s job.

Cochran grew more dissatisfied with certain aspects of Selsor’s performance, especially with Selsor’s failure to expand the range of suppliers and solicit competitive bids. Cochran met with Selsor on September 4, 1981, to review Selsor’s strengths and weaknesses, which were listed in a memorandum given to Selsor. Cochran felt that Selsor had set unrealistic timetables, was time-oriented rather than task-oriented, had not solicited bids successfully and had not been assertive enough with outsiders. Selsor understood that Cochran felt that these were problems with his performance.

At the September 4 meeting, Cochran told Selsor that he was planning to hire an Assistant Advertising Manager, who would eventually assume Selsor’s position. Cochran felt that Selsor had weaknesses as a manager, but had strengths on the creative side of advertising. Thus, Selsor would at some time work on the creative end of the business. On December 14, 1981, Callaghan hired Edwyn Gold (“Gold”), then 47 years old, as Assistant Advertising Manager. Selsor was one of the people who interviewed Gold, and he agreed that Gold was the best applicant for the job.

Gold was an effective manager. He cut costs and streamlined the advertising operation. Meanwhile, Cochran became increasingly dissatisfied with Selsor’s performance and his attitude. He and Selsor had had several discussions in which Cochran said that Selsor was not responding well to Cochran’s new system. Finally, at a marketing meeting on December 20, 1982, Cochran stated that two or three unnamed employees were “coasting,” and not responding to Cochran’s programs. He called for their resignations by the end of January 1983. Selsor learned that he was one of these unnamed employees, and a few days later he went to see Cochran. Cochran said, among other things, that Selsor’s attitude had been deteriorating, that he and Gold had not been getting along, and that he had not been giving “110 percent.” Cochran told Selsor that he was going to follow through on his plan of naming Gold as Advertising Manager. Selsor would assume the position of “Production Coordinator” and keep the same salary and benefits. This change was made in January 1983. Selsor admits that the change was a reasonable business decision.

Although Selsor’s relationship with Gold had been good initially, their rapport gradually deteriorated. They developed a personality conflict. This conflict intensified when Gold became Advertising Manager. Selsor had thought he and Gold were to have equal authority. However, he found himself subservient to Gold in his new position. Selsor became unhappy, according to his deposition testimony, because he never actually received creative work or a description of his new job. Instead, he was given clerical and menial tasks. Meanwhile, Gold was dissatisfied with Selsor’s work and attitude. Gold felt that Selsor had made several mistakes. Selsor does not deny that he made mistakes, but says that they were easily corrected and cost the company nothing. Selsor admits that Gold frequently criticized him and yelled at him.

Finally, on April 1, 1983, Selsor was formally placed on thirty days probation. His notice listed several mistakes and deficiencies. He decided to take two weeks vacation then. Before leaving, he asked to be placed in another position at Callaghan. When he returned, he was told that no jobs were available. His last day at Callaghan was April 23, 1983. No one was hired to replace him as Production Coordinator. He filed this lawsuit later that year, alleging that he was discharged because of his age.

Section 623 of the ADEA makes it illegal for an employer “to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a). As plaintiff, Selsor bears the burden of proving that age was a determining factor in Callaghan’s decision to fire him; that is, he must prove that “but for” his age, Callaghan would not have fired him. See, e.g., LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). Selsor may take two tacks in proving age discrimination. First, he may prove by direct or circumstantial evidence that he was dismissed because of his age. Id. Selsor has not relied on this approach. He has chosen the second, much more common approach, based on the burden-shifting tests of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Under the McDonnell Douglas approach, as modified for the context of an ADEA case, Selsor may make out a prima facie case of age discrimination by showing (1) that he was in the age group protected by the ADEA, that is, between 40 and 70 years old; (2) that he was doing his job well enough to satisfy Callaghan’s legitimate expectations; (3) that he was fired; and (4) that Callaghan sought a replacement for him. LaMontagne, at 1409-10; Huhn v. Koehring Co., 718 F.2d 239, 242-43 (7th Cir.1983). If Selsor meets this burden, he enjoys a presumption that he was dismissed because of his age. However, Callaghan may rebut this presumption by articulating a lawful reason for the discharge. This is merely a burden of production. The burden of proof always rests on the plaintiff. See, e.g., LaMontagne, at 1409, citing Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If Callaghan dissolves the presumption, to prevail Selsor must prove that the articulated reasons are a pretext, by showing either that Callaghan was more likely motivated by a discriminatory reason or that its justification is not credible. Id. Under this indirect method of proof, it is possible to prove age discrimination without introducing any evidence that age motivated the employer. Id. at 1409-10.

Our present task in applying the above standards is to decide whether summary judgment is appropriate. Summary judgment is unusual in an employment discrimination case because so much often depends on an employer’s credibility and his or her hidden or unconscious motives. However, summary judgment may be appropriate where no evidence suggests that motive and intent are involved. See Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th Cir.1980), cert, denied, 450 U.S. 959,101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); see also Parker v. Fed’l National Mortgage Assn., 741 F.2d 975, 979-81 (7th Cir.1984) (affirming district court entry of summary judgment because of failure to prove pretext); Huhn, 718 F.2d at 243-45 (affirming entry of summary judgment because of failure to prove prima facie case). The usual summary judgment standards apply. Summary judgment may be granted only if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R. Civ.P. 56(c). As the moving party, Callaghan must show that no genuine issue of material fact exists. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984). We must view the evidence, and the reasonable inferences drawn from the evidence, in the light most favorable to Selsor, the party opposing the motion. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984). If Callaghan fails to meet its “strict burden of proof,” we must deny summary judgment. Id. But if Callaghan does meet its initial burden, we must see whether Selsor has met its resulting burden of creating a genuine issue as to that fact. To meet this burden, Selsor cannot rest on bare pleadings or bald assertions. Fed.R.Civ.P. 56(e); Big O, 741 F.2d at 163. With these standards in mind, we turn to the merits.

Because Selsor has presented no direct evidence of age discrimination, we will evaluate the undisputed facts in light of the McDonnell Douglas criteria spelled out earlier. The parties agree that Selsor meets two of the criteria. At 58 when fired, Selsor falls within the ADEA’s protected age group. Secondly, he was fired. The parties disagree over whether Selsor meets the other two criteria. First, Callaghan contends that Selsor was never replaced as Productions Coordinator. and therefore cannot satisfy the fourth element of his prima facie case. Although Selsor was never replaced as Productions Coordinator, one might reasonably infer from the facts that Selsor was in reality “discharged” when Ed Gold replaced him as Advertising Manager in January 1983. Looking at the facts in a light most favorable to Selsor, it is reasonable to infer that the decision to fire Selsor was made then, and the last few months were merely a denouement. during which Selsor was “squeezed out” of his new job. We therefore assume for argument’s sake that Selsor has satisfied the fourth criterion of his prima facie case.

The crux of Callaghan’s position is that Selsor cannot satisfy the second element, that is, that he cannot prove that he was performing well enough to satisfy Callaghan’s legitimate expectations. Callaghan relies on the undisputed facts that Cochran and Gold both grew increasingly unhappy with the quality and quantity of Selsor’s work. Callaghan emphasizes that the employer’s legitimate perceptions are controlling in this analysis. See Huhn, 718 F.2d at 244.

The above uncontradicted evidence could likely support a conclusion that Selsor was not satisfying Cochran’s legitimate expectations. While Selsor received satisfactory overall reviews in the past, the criticisms of his work were consistent even in these satisfactory reviews. Cochran’s dissatisfaction undeniably increased by the end of 1982. We may, like the District Court in Hukn, see 718 F.2d at 242, approach these facts in one of two ways. On the one hand, we might conclude that the undisputed facts show that Selsor was not performing well enough at the time of his discharge and therefore cannot satisfy the second element of his prima facie case. On the other hand, these facts can be seen as an articulation by Callaghan of a legitimate non-discriminatory reason for Selsor’s discharge, thereby rebutting Selsor’s prima facie case. Although a finding against Selsor under the first approach is probably appropriate on this record, we will assume that he has made out his prima facie case. But even under this assumption, it is clear that Callaghan has met its burden of articulating lawful reasons for firing Selsor.

Selsor has not contradicted Callaghan’s evidence that, at the time of his “discharge” (whether viewed as taking place in January or April), he was not performing up to Callaghan’s expectations. Cochran’s dissatisfaction with Selsor’s work grew over a two-year period and constitutes a legitimate non-discriminatory reason for his discharge. Indeed, much uncontested evidence in the record which we have not mentioned above also supports this conclusion. Moreover, Selsor’s developing personality conflict with Gold provides a second non-discriminatory reason for his discharge. A personality conflict with a supervisor may be a legitimate reason for discharge, if the conflict is not at all related to the plaintiff’s age. See Chamberlain v. Bissell, Inc., 547 F.Supp. 1067, 1077 (W.D.Mich.1982).

Because the uncontroverted evidence supports a finding that Callaghan has rebutted Selsor’s prima facie case, it is up to Selsor to show that Callaghan’s articulated reasons are merely a pretext for age discrimination. He can carry this burden “by showing either that a discriminatory reason more likely motivated the employer or that the employer’s proffered explanation is unworthy of credence.” LaMontagne, at 1414. Selsor cannot satisfy this burden. First, there is no evidence that Callaghan’s “proffered explanation,” that Selsor was performing below par, is not credible. To the contrary, a great mass of undisputed evidence supports this explanation. Second, there is no credible evidence that age at all motivated Callaghan. This second point requires some explanation.

Selsor argues that a genuine issue of fact exists on the issue of pretext. He points to an affidavit he submitted with his brief in response to Callaghan’s summary judgment motion. In that affidavit he swears that in his December 1982 conversation with Cochran, Cochran told him that he wanted to fire him because he was 11 years older than Gold and was thus much closer to retirement. Cochran supposedly said that he wanted to implement his marketing policies with someone who would be around longer. We agree with Selsor that this evidence, if true, could prove that Cochran’s proffered explanations were pretextual. Indeed, this evidence might even support a finding of age discrimination under a direct method of proof. However, we must take this evidence in the context of all the evidence in the record. It will soon become clear that this evidence does not create a genuine issue of material fact.

Selsor’s affidavit contains the first evidence that age played a role in Cochran’s decision. The affidavit contradicts several admissions by Selsor in his deposition that to his knowledge he could not point to any direct evidence that age was a factor in Callaghan’s decision. He was asked whether Cochran told him that the firing decision was based on age. Selsor replied,

“No, I don’t think he’s that dumb.” Selsor Deposition at 134. Similarly, Selsor denied that anyone at Callaghan ever told him that he was fired for being closer to retirement than Gold:
Q. Did anyone at Callaghan & Company ever do or say anything that would lead you to believe that you were terminated or one of the reasons for your termination was you were closer to retirement age than Ed Gold was?
A. Did anyone say that?
Q. Did anyone say that?
A. No, no.

Selsor Deposition at 470. Selsor also denied knowing of any direct evidence of age discrimination:

Q. Mr. Selsor, did anyone employed by Callaghan & Company ever say to you that age was a factor in your being put on probation?
A. No.
Q. Or in your alleged termination?
A. No.
Q. Did anyone at Callaghan & Company ever disparage you because of your age?
A. No.
Q. Or because they said you were too old or anything like that?
A. No.
Q. Do you believe Randy Cochran would discriminate you because of your age?
A. As the facts turned out, yes.
Q. As the basis for that belief, are you including any facts other than those appearing in response to Interrogatory No. 7? A. No.
Q. Did anything ever happen to you while you were employed by Callaghan & Company that suggested in any way that anybody at Callaghan & Company thought you were too old to do your job properly?
A. No.
Q. And finally, did anyone at Callaghan & Company tell you you were too old for your job?
A. No, they didn’t tell me I was too old for my job.

Selsor Deposition at 430-31. In addition, Selsor’s own lawyer asked him several broad questions at the deposition about why he believed age was a factor in his dismissal. Selsor gave no specific evidence in response and never mentioned the statements he now attributes to Cochran in his affidavit. Selsor Deposition at 455-63.

Finally, Selsor ended his deposition as follows:

Q. I am asking you if you contend that there are now additional facts supporting your allegation that you were terminated because of your age. Have all of those facts been brought out during the two days of deposition that you have undergone?
A. To the best of my knowledge, yes.
Q. In addition to those, in addition to your specific answer to Interrogatory No. 7 and the testimony that will appear that you gave during your deposition, there are no other facts upon which you rely in support of your allegation that you were discriminated against because of your age, is that correct?
A. Yes.

Selsor Deposition at 479. In sum, Cochran’s statements about Selsor’s age first appeared in Selsor’s affidavit responding to the summary judgment motion, despite several previous denials that such evidence existed.

No reasonable person could possibly believe that in his deposition Selsor would have omitted to mention Cochran’s alleged statements if they were actually made. Although our duty in ruling on this summary judgment motion is to resolve issues of credibility in Selsor’s favor, this duty extends only to plausible issues of credibility. Where, as here, “an offer of evidence ... is too incredible to be believed,” the court may disregard it. 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure, § 2727 (1983), at 169-70; see also 598 Cases, Each Containing 24 Cans, More or Less, of Tomatoes v. United States, 211 F.2d 249, 251 (7th Cir.1954) (resolve conflicting evidence in favor of party opposing summary judgment unless evidence creating the conflict is “too incredible to be accepted by reasonable minds”). Selsor’s new “evidence,” which directly contradicts his extensive deposition testimony, cannot now be used to conjure up a genuine factual dispute.

In sum, we conclude that no genuine factual dispute exists on the issue of whether Callaghan’s articulated reasons for firing Selsor were pretextual. Selsor cannot carry his burden of proving pretext, and therefore we may properly grant Callaghan’s motion for summary judgment. In reading parts of Selsor’s deposition we noticed him complaining that Callaghan treated him shabbily and unfairly. This might very well be, and if so, by this opinion we do not intend to condone such treatment. However, it does not warrant relief under the ADEA absent evidence of age discrimination. We will therefore enter a judgment of dismissal. It is so ordered.

      . Callaghan submitted a statement of undisputed facts in accordance with Local Rule 12(e). Selsor did not formally file a "concise statement of genuine issues,” as Local Rule 12(f) requires of him. That rule states that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.” While Selsor did not file a Rule 12(f) statement with his motion, he did file a similar statement as part of his pretrial order materials. That statement did not contradict, nor did his memorandum contradict, the great majority of the facts in Callaghan’s Rule 12(e) statement. Selsor merely added some facts and disagreed with the weight Callaghan gave and conclusions it drew from its proffered facts. Accordingly, we will treat Callaghan’s Rule 12(e) statement as undisputed as to the basic facts set out there.

      . McDonnell Douglas was a Title VII case, but its methodology has been applied generally to ADEA cases. See, e.g., LaMontagne, at 1409 n. 1.

      . There is one piece of direct evidence, which we discuss below at pp. 1008-1009. In light of our treatment of it below, we need not consider it here.

      . The parties dispute whether Selsor was discharged or left of his own accord. For the purposes of this motion, Callaghan conceded that it fired Selsor. Certainly at a minimum, a genuine factual issue exists on that issue.

      . Indeed, much evidence suggests that Cochran viewed age as a plus. Selsor admits that Cochran initially told him that he hoped to make good use of Selsor’s experience. Cochran’s first formal evaluation of Selsor noted "experience’’ as one of Selsor's strengths. Similarly, Cochran did not fire another 58 year old manager who had been on shaky ground. Besides Selsor, Don Goodman (age 58) and Jeanne Garrett (age 40) had been singled out at the December 20, 1982 meeting as "coasting." Garrett, the younger employee, was fired on January 14, 1983. However, Goodman was placed on probation, performed well and still works for Callaghan. At a minimum, then, there is no pattern of prejudice against older employees.

      . Interrogatory No. 7 asked:
      In paragraph 7 of the Amended Complaint the Plaintiff alleges, inter alia, that the Defendant terminated his employment “solely because of his age.”
      (a) Identify every fact, transaction, occurrence, event and communication upon which the Plaintiff relies in support of the foregoing allegation.
      Selsor answered as follows:
      ANSWER: Various acts and occurrences during plaintiffs last year of employment with defendant in which plaintiff was charged with various unimportant mistakes, yelled and criticized in front of his staff. Plaintiff was told on various occasions that he wasn’t a "team player” for his failure to stay after work and participate in various social functions. Finally, written lists were kept of plaintiffs various mistakes, plaintiff was told to resign under threat of being fired despite the fact that all prior evaluations by plaintiffs direct superiors evidenced plaintiffs satisfactory work performance.

      . The basis of Selsor’s suspicion appears to be that Gold was making less money than he:
      By December 20, when I, this other meeting took place in which he talked about cutting our cancerous growth and I found out I was one of the ones, subsequently, to be cut out, then I went back and realized that I had been the victim of a lot of papering on age discrimination because Ed had been brought into the job at a lesser salary.
      I was making $30,000; Ed was making $20,-000 and the company obviously could save money if I was forced to retire on all the benefits of retiring.
      Selsor Deposition at 456. Significantly, neither here nor at any other relevant points in his deposition did Selsor mention the statement he now attributes to Cochran. Selsor’s mere suspicion is not enough to carry his burden of proving pretext. Gold’s lower salary, while relevant, does not create a genuine issue of fact when considered in the context of all the evidence.

      . In light of Selsor's deposition testimony, Selsor, his attorney, or both, flirted perilously close to violating Fed.R.Civ.P. 11 in submitting the affidavit.


text:
    Geraldine G. CANNON, Plaintiff, v. LOYOLA UNIVERSITY OF CHICAGO; Northwestern Unviersity; Rush Presbyterian-St. Lukes Medical Center; Southern Illinois University; University of Health Sciences/The Chicago Medical School; The University of Chicago; and The Board of Trustees of the University of Illinois, Defendants.
    No. 84 C 8063.
    United States District Court, N.D. Illinois, E.D.
    Feb. 26, 1985.

      John Cannon, Chicago, Ill., for plaintiff.

      Stuart Bernstein, Susan S. Sher, Robert T. Zielinski, Mayer, Brown & Platt, Barney Ira Cohen, Max D. Brown, Eric A. Oesterle, William T. Barker, Kirk R. Ruthenberg, Sonnenschein, Carlin, Nath & Rosenthal, Nina G. Stillman, Allan Lapidus, Vedder, Price, Kaufman & Kammholz, James T. Otis, Robert E. Arroyo, Keck, Mahin & Cate, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Geraldine Cannon wants to be a physician. She applied ten years ago to seven Illinois medical schools, and each of them rejected her. Still determined to become a doctor, Cannon sued all of these schools in federal court to gain admission. Her ten-year journey through the federal judiciary has taken her through several district courts, the Seventh Circuit and the Supreme Court. Every suit she brought was ultimately dismissed for one reason or another. Cannon is here again. This time she has sued all seven medical schools in one action, alleging different theories of recovery than before, but alleging the same underlying facts as before. The seven defendants, experiencing deja vu, have moved to dismiss the case under the doctrine of res judicata. For the reasons-spelled out below, we grant the motions to dismiss.

I.

The undisputed history of Cannon’s quest has been detailed in earlier opinions. 559 F.2d 1063 (7th Cir.1976); 710 F.2d 351 (7th Cir.1983). We will only summarize this history here.

In late 1974 Cannon applied for admission to the 1975 entering class of every medicaí school in Illinois, each of which is a named defendant in this suit. Every school rejected her application. She was a 39-year old nurse at the time. As a matter of policy, each of these schools either rejected or disfavored applicants over 30.

In the summer of 1975, Cannon sued two of these schools, the University of Chicago (“Chicago”), No. 75 C 2724, and Northwestern University (“Northwestern”), No. 75 C 2402. She alleged, among other things, sex discrimination in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and violations of constitutional rights under 42 U.S.C. § 1983. Her theory was that the school’s age criteria exerted a disparate impact on women applicants, who were more likely to be older than male applicants because of decisions to bear and raise children. The district court dismissed the complaint for failure to state a claim upon which relief could be granted. 406 F.Supp. 1257 (N.D.Ill.1976) (Hoffman, J.) The most relevant part of the decision was that Title IX contained no private right of action. 406 F.Supp. at 1259. The Seventh Circuit affirmed. 559 F.2d 1063 (1976). The Supreme Court reversed, holding that Title IX created an implied right of action. 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The case was remanded for consideration of the Title IX claim only. In an oral order dated May 23, 1980, the district court again dismissed the case under Fed. R.Civ.P. 12(b)(6), this time holding that Title IX redresses intentional sex discrimination only, and that Cannon had failed to state a claim of intentional discrimination. The Seventh Circuit affirmed, 648 F.2d 1104 (1981), and the Supreme Court denied certiorari. 460 U.S. 1013, 103 S.Ct. 1254, 75 L.Ed.2d 482 (1983). Her avenues of appeal exhausted, Cannon returned to the district court to seek post-judgment relief under Fed.R.Civ.P. 60. This Court denied her motion. She did not appeal.

Cannon sued the remaining five schools in one action filed on November 29, 1979. No. 79 C 5009. She sought monetary and injunctive relief under Title IX and also sued the two state universities under 42 U.S.C. § 1983. She had no better luck with this suit. On October 13, 1981, Judge Robson dismissed the complaint for failure to state a claim. The Court held that the doctrine of laches barred the suit as to all defendants except Chicago Medical School (“Chicago-Med”), which had not posed the defense. Leave was granted to file an amended complaint against Chicago-Med, but leave to amend was denied as to the other defendants. On June 15, 1982, Judge Robson modified the earlier order. Chicago-Med, too, was dismissed because of laches. The dismissal of the two state schools, University of Illinois (“Illinois”) and Southern Illinois University (“SIU”), was vacated, but summary judgment was entered in favor of those two schools on the grounds of mootness. The Seventh Circuit affirmed, but on the grounds of laches as to all five schools. 710 F.2d 351 (7th Cir. 1983). Cannon’s petition for a rehearing was denied, and she did not seek a writ of certiorari.

Cannon filed this suit on September 18, 1984, joining all seven schools as defendants. The material facts in the complaint are the same as those in the earlier cases: she challenges her rejections as being sex discrimination because of the age criteria. Cannon’s legal theories now differ somewhat. The complaint contains two “counts,” which both allege contract theories. Count I alleges that when Cannon applied to each of the schools and filed her application fee, she had contracted with them that they would consider her application according to their written policies, unless those policies violated public policy. Each defendant allegedly breached the contract by relying on the age criteria, which violated public policy.

Count II rests on a third-party beneficiary theory. Allegedly, when the federal government gave money to each school, each school agreed to comply with Title IX. Applicants for admission, including Cannon, were allegedly third party beneficiaries of this “contract.” Each school breached its contract with the government when it allegedly violated Title IX in denying Cannon admission.

Cannon seeks injunctive relief and damages. The defendants have moved to dismiss, raising the defense of res judicata.

II.

Before addressing the res judicata issue, we briefly discuss a threshold question concerning the Court’s subject matter jurisdiction. Although neither side questioned our jurisdiction, it is of course proper, indeed required, that the Court raise any questions going to our jurisdiction over the case.

It appears that the well-pleaded complaint states two state law claims for breach of contract. While the causes of action are apparently grounded in state law, the contract theories will inevitably depend on an interpretation of federal law, that is, whether “public policy,” as expressed in Title IX, was offended by Cannon’s rejection. Cannon alleges in her complaint that the suit “arises under” Title IX, thus giving this Court jurisdiction under 28 U.S.C. § 1331. Our threshold question, then, is whether Cannon’s contract claims do in fact “arise under” Title IX. This question is not simple, since the doctrine interpreting the meaning of “arising under” is a quagmire, to say the least. See generally 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 3562 (1984).

Because state law creates Cannon’s causes of action, her complaint fails Justice Holmes’ threshold test that “a suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916). But Justice Holmes’ test defines cases which clearly fall within federal jurisdiction, it does not necessarily describe which cases are outside. See, e.g., Franchise Tax Bd: v. Construction Laborers, 463 U.S. 1, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). A case may “arise under” federal law where the well-pleaded complaint reveals that the “vindication of a right under state law necessarily turn[s] on some construction of federal law.” Id. at 9, 103 S.Ct. at 2846, citing Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.C. 243, 65 L.Ed. 577 (1921); see also T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir.1964). Cannon’s complaint appears to satisfy this “pivotal federal question” test, since her right to relief would necessarily turn on a construction of Title IX, and perhaps other federal policies.

However, it is not enough to allege a “federal question.” A plaintiff must allege a “substantial” federal question in order to invoke the court’s subject matter jurisdiction. See, e.g., Molina-Crespo v. Califano, 583 F.2d 572, 573-74 (1st Cir. 1978); Wright, Miller and Cooper, § 3564 at 66. To be insubstantial, a federal claim must be “obviously without merit” or clearly foreclosed by prior Supreme Court precedent, “leaving no room for the inference that the question sought to be raised can be the subject of controversy.” Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577 (1974) (quotations omitted); Wright, Miller & Cooper, § 3564 at 67-70. This test for dismissal is rigorous; if the claim is at all plausible, jurisdiction exists. See Wright, Miller & Cooper, supra at 70-71.

The “federal question” in this case, like that in Cannon’s earlier suits, appears to be whether defendants’ conduct violated Title IX. The Seventh Circuit has already squarely held that it did not. 648 F.2d at 1106-09. In so holding, the Court drew upon Supreme Court precedent that interpretation of Title IX depends upon interpretation of Title VI, and that the latter statute reaches only claims of intentional discrimination. The Court concluded that the Supreme Court would hold that Title IX as well does not reach intentional discrimination. Id. at 1109. In this suit, as in the earlier one, Cannon has alleged only an unintentional violation of Title IX. Therefore, an argument can be made that her claim is either wholly meritless or clearly foreclosed by controlling law.

However, we do not finally resolve this jurisdictional question. Because the Supreme Court has not ruled directly on the Title IX issue, and because the “insubstantiality” test is very rigorous, we are reluctant to hold, sua sponte, that we lack jurisdiction. But in light of our holding below that the case is res judicata, we need not ask the parties to brief the jurisdictional issue.

III.

The doctrine of res judicata, or “claim preclusion,” has three elements. The defendants must show that (1) the parties to this suit are the same or in privity with those to the earlier suit; (2) this suit alleges the same cause, of action as the earlier suit did; (3) a court of competent jurisdiction entered a valid final judgment on the merits in the earlier suit. See, e.g., Federated Dept. Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981); Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir.1983), cert, denied, — U.S. —, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984). The parties agree that the first two requirements are met. The parties to this suit are obviously identical to those in the earlier suits. Moreover, the present complaint is based on identical facts as the earlier one. While the theories of relief differ slightly, that does not matter for res judicata purposes, since Cannon could have alleged the contract theories in the earlier suit. See, e.g. Mandarino, 718 F.2d at 849-50. The only dispute is whether the judgments operated as adjudications on the merits.

Fed.R.Civ.P. 41(b) provides the starting point for that analysis:

Unless the court in its order of dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

It is clear from this Rule that a case need not go to full trial to be “on the merits” and thus have preclusive effect. But we cannot simply conclude from the Rule that the Rule 12(b)(6) dismissals in the earlier cases were necessarily “on the merits.” Mere reliance on the literal language of Rule 41(b) is improper; the Rule’s list of adjudications that are not on the merits is not exclusive. See Rinehart v. Locke, 454 F.2d 313, 314-15 (7th Cir.1971). General preclusion principles should control our analysis. Id. These principles dictate that in general a dismissal for failure to state a claim under Rule 12(b)(6) operates as an adjudication “on the merits,” even though only the pleadings have been examined in dismissing the case. See Federated Dept. Stores, 452 U.S. at 399 n. 3, 101 S.Ct. at 2428; Bell v. Hood, 327 U.S. 678, 681-82; 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946); Mandarino, 718 F.2d at 849 (state court judgment on pleadings is preclusive); 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 4439 (1981) at 354-62. While courts used to distinguish dismissals for defective pleading from dismissals which go to the merits of a well-pleaded complaint, see Wright, Miller & Cooper at 354-57, that distinction generally has been discarded in light of modern rules which allow liberal amendments in the first suit. Id. at 357-58.

These standards lead us to hold that Cannon’s original suits against Chicago and Northwestern preclude her attempt to sue those parties in this case. That case was dismissed because she had not and could not allege intentional discrimination under Title IX. The dismissal for failure to state a claim was affirmed, and post-judgment relief was denied. She cannot successfully dress the same cause of action in contract clothing in this suit.

Cannon’s main argument rests on a clever, but meritless, syllogism. Jurisdiction in the earlier suit was based on 28 U.S.C. § 1343(4), which states in part that federal courts have jurisdiction “of any civil action authorized by law ... [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights.” Cannon contends that because the earlier suit was dismissed for failure to state a claim under Title IX, it was no longer a “civil action authorized by law,” thereby depriving the court of jurisdiction under § 1343(4). Thus, concludes Cannon, the dismissal in the earlier suit was for lack of jurisdiction and not entitled to preclusive effect. This argument is flawed. Its logic converts every dismissal for failure to state a claim under federal civil rights law into a dismissal for lack of jurisdiction. It converts many motions under Rule 12(b)(6) into ones under Rule 12(b)(1). Finally, it ignores Supreme Court statements that dismissals for failure to state a federal claim are not jurisdictional and are preclusive. Federated Dept. Stores, 452 U.S. at 399 n. 3, 101 S.Ct. at 2428; Bell v. Hood, 327 U.S. at 681-82; 66 S.Ct. at 775-76. Costello v. United States, 365 U.S. 265, 285-86, 81 S.Ct. 534-544-46, 5 L.Ed.2d 551 (1960), relied upon by Cannon does not suggest a contrary result. At most, Costello holds that a dismissal based on a plaintiffs “failure to comply with a precondition requisite to the Court’s going forward to ... the merits” may not be preclusive under Rule 41(b). Cannon’s earlier suits involved no issue about her compliance with “preconditions.” Thus, Costello is irrelevant here, and certainly does not weaken the force of the general rule that a Rule 12(b)(6) dismissal is “on the merits.”

Similarly, the previous dismissal of the remaining parties precludes Cannon’s attempt to sue them in this case. As noted earlier, the Seventh Circuit ultimately premised the dismissal on laches as to all parties. An appellate decision may have preclusive effect, even if resting on different grounds than the lower court decision. 1B J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice, ¶ 0.416[2] (1984) at 518. Dismissals based on laches or the running of a statute of limitations preclude a second action based on the same claim brought in the same system of courts. McCrocklin v. Fowler, 285 F.Supp. 41 (E.D.Wis.1968) (laches), affd on opinion below, 411 F.2d 580 (7th Cir.1969); see also Ellingson v. Burlington Northern, Inc., 653 F.2d 1327, 1330-31 n. 3 (9th Cir.1981) (limitations); Myers v. Bull, 599 F.2d 863, 865 (8th Cir.1979) (per curiam) (limitations), cert, denied, 444 U.S. 901,100 S.Ct. 213, 62 L.Ed.2d 138 (1979); Mathis v. Laird, 457 F.2d 926, 927 (5th Cir.1972) (per curiam) (limitations), cert, denied, 409 U.S. 871, 93 S.Ct. 201, 34 L.Ed.2d 122 (1972); Wright, Miller & Cooper, § 4441 at 366. Although the present claim is based on a contract theory, with possibly different limitations or laches considerations, it is the same “claim” as the previous one for res judicata purposes, and is therefore precluded. See Nilsen v. City of Moss Point, 674 F.2d 379, 383 n. 5 (5th Cir.1982), rev’d on other grounds, 701 F.2d 556 (5th Cir.1983) (en banc); Cerner v. Marathon Oil Co., 583 F.2d 830, 832 (6th Cir.1978) (dismissal of employment discrimination claim under short federal time limits precludes later “timely” contract action based on same facts).

In sum, we hold that the doctrine of res judicata prevents Cannon from bringing this lawsuit. We have examined Cannon’s remaining arguments to the contrary and find that they lack merit.

IV.

The defendants argue that they are entitled to costs and fees incurred in dismissing this complaint, because the complaint was filed in violation of Fed.R.Civ.P. 11. That Rule states:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated____ The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extention, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper including a reasonable attorney’s fee.

The defendants assert that the complaint was obviously barred by res judicata, and that its filing was frivolous and vexatious. They also point to the history of the original suits against Chicago and Northwestern as indications that Cannon’s counsel knew this suit was frivolous. Following the Seventh Circuit’s affirmance of Judge Hoffman’s dismissal, the Court denied Cannon leave to amend her complaint or to petition the district court for leave to amend. The Supreme Court then denied her petitions for writs of mandamus and certiorari. 454 U.S. 811, 102 S.Ct. 373, 70 L.Ed.2d 197 (1981) (mandamus); 454 U.S. 1128, 102 S.Ct. 981, 71 L.Ed.2d 117 (1981) (certiorari). Back in the district court, Judge Hoffman denied another motion for leave to amend. Cannon went up the appellate ladder again, lost and then moved this Court for relief under Rule 60. We denied the motion. Finally, she filed this suit over a year later.

Attorneys are expected, even required, to represent their clients’ interests zealously. But they are also expected to know when to give up on an obviously lost cause. It should have been apparent to Cannon’s counsel that Cannon’s cause was dead. It should also have been apparent to him that bringing another action on the same facts would be barred by res judicata, collateral estoppel or both. We think that upon "reasonable inquiry,” counsel would have found that this suit was not “warranted by existing law.” Accordingly, we hold under Rule 11 that Cannon’s counsel shall pay defendants’ costs and attorney’s fees incurred from litigating this motion to dismiss. Imposing these sanctions on counsel only is proper under the Rule. See Fed.R.Civ.P. 11 (Advisory Committee Notes). Defendants may file a petition for reasonable costs and fees on or before March 1, 1985. Cannon’s counsel may respond on or before March 20, 1985. His response may include an argument that sanctions should not be imposed at all. We give him leave to do so because he did not previously respond to defendants’ Rule 11 arguments, even though he submitted two briefs in which he could have done so. Defendants may reply if they so choose on or before April 1, 1985.

V.

Defendants’ motions to dismiss are granted. They are further entitled to costs and fees. It is so ordered.

      . If Cannon were rejected because of age today, she might not have had to use this indirect sex discrimination theory. In late 1975, Congress passed the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101-07, which became effective in 1979, when the Department of Health, Education & Welfare passed interpretative regulations. These regulations stated that medical schools could not base admissions decisions on age. See Cannon v. University of Health Sciences/The Chicago Medical School. 710 F.2d 351, 354 (7th Cir.1983).

      . The court also held that the schools were not “employers" under the Age Discrimination in Employment Act, and that no state action supported the § 1983 claim.

      . The case was reassigned to this Court after Judge Hoffman retired.

      . Conceivably, the third-party beneficiary claim is grounded in a federal common law of contract, since the government was a "party" to the alleged contract, with significant interests at stake. Cf. United States v. Little Lake Misere Land Co., Inc., 412 U.S. 580, 591-94, 93 S.Ct. 2389, 2396-98, 37 L.Ed.2d 187 (1973); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 63 S.Ct. 573, 87 L.Ed. 838 (1943). This consideration is not relevant in light of our decision below not to decide the jurisdictional issue finally.

      . Cannon also alleges jurisdiction under 28 U.S.C. §§ 1343(4), 2201 and 2202. These additional statutes do not change the focus of the analysis below. With the elimination of the amount in controversy requirement from § 1331, § 1343(4) essentially overlaps that section. Sections 2201 and 2202, the Declaratory Judgment Act, are procedural only. It expands the range of remedies without extending jurisdiction. Shelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950).

      . Even if res judicata did not apply, it is likely that collateral estoppel, or “issue preclusion,” would prevent Cannon from relitigating the question whether defendants' conduct violated Title IX. We need not reach this question, however.


text:
    Denise WILLIAMS, on her own behalf and on behalf of all others similarly situated, Plaintiff, v. CITY OF CHICAGO; Fred Rice, Superintendent of Police; George Basile; Frank Glynn; Michael Rowan; James O’Rourke, Detectives, Chicago Police Department; John Burge, Lieutenant, Chicago Police Department, Defendants.
    No. 84 C 5909.
    United States District Court, N.D. Illinois, E.D.
    March 5, 1985.

      Tom Peters, Murphy, Peters, Davis & O’Brien, Chicago, Ill, for plaintiff.
    Robert W. Fioretti, Asst. Corp. Counsel, Diane J. Larsen, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Denise Williams (“Williams”) brings this action against the City of Chicago (“the City”) and certain members of the Chicago Police Department based on her involuntary post-arrest detention at a Chicago police station for approximately 72 hours. Williams alleges that she was detained pursuant to a city-wide policy which unconstitutionally authorizes police officers to detain arrestees indefinitely without appointment of counsel, judicial determination of probable cause or a bond hearing while the officers complete their investigation of the arrestees. Williams seeks monetary damages for herself, as well as declarative, injunctive and monetary relief for all those similarly situated. She also petitions this Court for a preliminary injunction barring the City’s use of post-arrest investigatory detentions. Presently before the Court is the City’s motion to dismiss both the petition for a preliminary injunction and any other claim for injunctive relief. For the reasons stated below, the City’s motion is granted.

Article III of the United States Constitution requires the existence of an actual case or controversy in order for a plaintiff to invoke federal jurisdiction. United States Parole Commission v. Geraghty, 445 U.S. 388, 395-97, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980); Flast v. Cohen, 392 U.S'. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). Without a showing of any continuing, present adverse effects, past exposure to illegal conduct does not in itself show a present case or controversy for purposes of injunctive relief. Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983); O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974).

Even if we assume that Williams was illegally detained by the police, she has not alleged or shown a real and immediate threat that she will again be detained in the future. Thus, Williams has not satisfied the prerequisites for seeking injunctive relief. Lyons, 461 U.S. at 109, 103 S.Ct. at 1669; Trotter v. Klincar, 566 F.Supp. 1059, 1061-62 (N.D.Ill.1983), affd, 748 F.2d 1177 (7th Cir.1984).

Williams argues that her case differs significantly from Lyons, in that Lyons was not a class action. It is true that the Supreme Court has distinguished between individual suits and class actions in applying the doctrine of mootness. However, we disagree with Williams’ contention that the Supreme Court would relax the Lyons standing requirements in class actions.

In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Supreme Court held that although' the named plaintiff’s individual claim became moot after a class had been certified, the entire action was not rendered moot. Id., 419 U.S. at 401-02, 95 S.Ct. at 558-59. The Court extended this class action exception to certain cases in which the named plaintiff’s case expired before the district court ruled on the class certification motion in Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 861 n. 11, 43 L.Ed.2d 54 (1975). And in United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), the Court held that a named plaintiff whose claim had become moot could still challenge the district court’s refusal to certify a class. Id., 445 U.S. at 404, 100 S.Ct. at 1212.

However, in each of those cases — unlike Williams’ situation — the named plaintiffs had standing to sue for injunctive relief at the beginning of the litigation. This distinction is critical. As the Court noted in Sosna, “Our conclusion that this case is not moot in no way detracts from the firmly established requirement that the judicial power of Art. Ill courts extends only to ‘cases and controversies’ specified in that Article. There must ... be a named plaintiff who has such a case or controversy at the time the complaint is filed____” Sosna, 419 U.S. at 402, 95 S.Ct. at 559. Thus, we do not believe the Supreme Court would allow a plaintiff like Williams, who never had standing to sue for injunctive relief on her own behalf, to claim standing to sue for such relief on behalf of a class.

One reported case, however, does adopt Williams’ position. In Lewis v. Fully, 99 F.R.D. 632 (N.D.Ill.1983), another judge in this district held that a plaintiff could seek injunctive relief on behalf of a class in spite of the fact that he did not satisfy the Lyons standing test. The court in Lewis held that the Lyons test should be applied to the class as a whole rather than to the named plaintiff, and that the named plaintiff had a sufficient personal stake in the litigation where he had been subjected to the allegedly illegal conduct in the past — although he personally was no longer subjected to the challenged conduct and could not allege a real and immediate threat that he would suffer injury in the future.

We respectfully disagree with the Lewis court’s conclusions. In the first place, the court gives short shrift to certain aspects of Lyons. Although Lyons does not appear to involve a class action, the plaintiff in that case sought preliminary and permanent injunctive relief which would benefit not only himself but every person who dealt with the Los Angeles police. Moreover, to justify the general bar against chokeholds that he sought, the plaintiff alleged that numerous persons had been injured or killed from such holds, and that he and others similarly situated were threatened with irreparable injury. In ruling that the plaintiff lacked standing, the Supreme Court relied heavily on O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), a class action in which the Court held that none of the named plaintiffs had alleged a case or controversy. The Court also ruled that the claim in Lyons was not one which is “capable of repetition, yet evades review,” stating that “the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” Lyons, 461 U.S. at 109, 103 S.Ct. at 1669 (emphasis added and citation omitted).

The Lewis court recognizes the Supreme Court’s reliance on O’Shea, but distinguishes O’Shea “because, unlike in that case, the prospect of future injury here was not ‘conjectural.’ ’•’ Lewis, 99 F.R.D. at 641 n. 9. However, the future injury the court refers to is that of the class, not the named plaintiff. Later in the Lewis opinion the court acknowledges, and then quickly avoids, the harsh fact that O’Shea was a class action: “As far as any class action problem posed by O’Shea is concerned, w'e note only that O’Shea preceded Gerstein and Geraghty, on which we have relied here.” Id. at 644 n. 15.

The Lewis court in fact bases much of its reasoning on the Supreme Court’s purportedly flexible attitudes towards class actions, as expressed in Geraghty. Id. at 639-40. Moreover, the court considers the issues of mootness and standing to be essentially indistinguishable. Id. at 639. However, the court overlooks the fact that in Geraghty the Supreme Court expressly limited its holding to the appeal of the denial of a class certification motion. Geraghty, 445 U.S. at 404, 100 S.Ct. at 1213. Given this explicit limitation, as well as the distinction between mootness and standing the Supreme Court has made (as in the portion of Sosna quoted above), we think it ill-advised to read too much flexibility in the Court’s views on standing.

The Supreme Court has conceded that “the prior eases [on standing and mootness] may be said to be somewhat confusing, and that some, perhaps, are irreconcilable with others.” Id., 445 U.S. at 406 n. 11, 100 S.Ct. at 1214 n. 11. While the Court has indeed sent out conflicting signals concerning these issues, the message of Lyons is clear: a plaintiff may not sue for injunctive relief without showing a real and immediate threat of future injury. We believe the Court would insist that this standing requirement be satisfied in both individual and class actions. Thus, Williams does not have standing to seek a preliminary injunction or any other injunctive (or declaratory) relief.

Accordingly, the City’s motion to dismiss is granted. It is so ordered.

      . The City does not dispute that Williams has a viable claim for monetary damages. Rather, the City simply argues that because Williams was no longer detained by the police at the time she filed her complaint, she does not have standing to seek injunctive relief for herself or on behalf of a class.

      . This case is therefore distinguishable from Thomas v. City of Chicago, No. 83 C 5601 (N.D. 111. Aug. 30, 1984), in which the plaintiff remained the primary suspect in an unsolved murder investigation and accordingly satisfied the Lyons standing test.

      . See also O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974): "Moreover, if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.” (Footnote and citations omitted).

      . Additionally, the court ruled that the plaintiffs claim in no way "evaded" review because it remained to be litigated in his suit for damages. Id.

      . We note that O’Shea is inconsistent with these later cases only when the Lewis court’s position on standing is adopted.

      . The Supreme Court also distinguished the situation in Geraghty from the case “brought a day after the prisoner is released,” which is precisely the case here and in Lewis. See Geraghty, 445 U.S. at 407 n. 11, 100 S.Ct. at 1214 n. 11.

      . This conclusion might also be inferred from the dissenting opinion in Lyons, which expresses frustration with the majority’s holding: "The Court today holds that a federal court is without power to enjoin the enforcement of the city's policy, no matter how flagrantly unconstitutional it may be. Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy.” Lyons, 461 U.S. at 113, 103 S.Ct. at 1671 (Marshall, J. dissenting). The dissenters probably would not have been so upset if they believed the holding in Lyons did not reach class actions. We sympathize with Justice Marshall’s dissent— and with the Lewis court’s attempt to circumvent the standing requirements. Because of the length of the detention periods involved in the present case, it is quite unlikely that an arrestee could retain an attorney and have the attorney prepare and file a complaint before the arrestee is released from the police station. Moreover, most arrestees (like Williams) will be unable to show a real threat of future injury from the City's detention policy. As a result, the federal courts are rendered impotent to order the cessation of a policy which may indeed be unconstitutional and may harm many persons. Nonetheless, the Court is constrained by Lyons and other Supreme Court decisions to limit its censure of unconstitutional police practices as alleged here to individual awards of money damages.

      . In an order dated January 4, 1985, we stayed briefing on Williams’ motion for a preliminary injunction and class certification pending the resolution of the City's motion to dismiss. Because the City’s motion is granted, the City now needs to respond only to the issue of whether class certification is appropriate for an action for damages. The City should file its response brief by March 20, 1985, and Williams should reply by March 25, 1985. The status hearing set for March 15, 1985, is vacated and reset for April 26, 1985, at 10:00 a.m. It is so ordered.


text:
    Robert L. GREEN, Sr., Plaintiff, v. ILLINOIS DEPARTMENT OF TRANSPORTATION, et al., Defendants.
    No. 84 C 7081.
    United States District Court, N.D. Illinois, E.D.
    March 5, 1985.

      Freddrenna M. Lyle, Chicago, Ill., for plaintiff.
    Daniel H. Brennan and Gladys Stevens, Asst. Attys. Gen., Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Robert Green (“Green”) has sued defendants, Illinois Department of Transportation (“IDOT”) and Joseph Kostur and Suzanne Czajkowski, two IDOT administrators, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the Fifth, Thirteenth and Fourteenth Amendments of the Constitution. Although written in one count, the complaint makes out two categories of claims — one for discrimination in employment on the basis of race and the other for retaliation against Green for filing discrimination charges.

Defendants have moved to dismiss the complaint. The thrust of defendants’ argument is that plaintiff’s claims are barred by the doctrine of res judicata. They also argue that the claim under section 1981 and the constitutional claims under 42 U.S.C. §§ 1983 and 1985 must be dismissed because Title VII is the exclusive remedy for this discrimination action. For the reasons stated below, defendants’ motion is granted in part and denied in part.

I.

Green, a 64 year old black man, worked for IDOT for 14 years until July 1983, when he was fired. Defendant Joseph Kostur (“Kostur”) is an IDOT Safety and Claims Manager, and Suzanne Czajkowski (“Czajkowski”) is a Senior Claims Examiner. Kostur and Czajkowski were Green’s supervisors at his most recent job with IDOT.

IDOT hired Green in March 1969 as a Right of Way Agent. In 1979, Green filed with the Equal Employment Opportunity Commission (“EEOC”) a discrimination charge against IDOT, accusing it of failing to promote him because of race. Under a settlement agreement Green was promoted in 1979 to the position of investigator. In January 1980, plaintiff again filed a discrimination charge with the EEOC. Following this charge, IDOT agreed it would give plaintiff primary consideration for the next available position for which he was qualified. However, IDOT never promoted him. In July 1983 IDOT fired Green, who remains unemployed.

In December 1981, Green sued IDOT alleging, among other things, violations of Title VII. In particular, Green alleged that following his complaint to the EEOC in January 1980, IDOT in retaliation harassed him in various ways. He alleged that supervisors monitored his work and disciplined him more extensively than that of his white co-workers. For example, between September 1979 and March 1980, they allegedly reviewed his work in detailed memoranda, while not so reviewing other employees. The complaint also alleged that he had applied for a promotion in late 1980, and that IDOT denied him that promotion because of his race. The complaint alleges that both the failure to promote and the retaliatory acts violated Title Vil.

By agreement of the parties, the 1981 suit {“Green I”) was transferred to a Magistrate. On December 14, 1983, the Magistrate dismissed the suit for want of prosecution when Green’s counsel failed to appear at a status hearing. This was the third “DWP” in the case, as this Court had twice before dismissed and then reinstated the case. Green moved to vacate the Magistrate's order of dismissal. The Magistrate denied the motion on March 29, 1984, and Green never appealed.

In July 1983, while Green I was still pending, Green filed another EEOC complaint. This charge alleged that his recent discharge was both retaliatory and based on race. In May 1984, the EEOC issued a “Right to Sue” letter, and Green filed this suit {“Green II”) on time in August 1984. The complaint in Green II recites the same history that was alleged in Green I. The complaint adds that the discrimination in promotion occurred again in September 1982, and that the regular harassment and excess scrutiny continued until Green was fired. The complaint also alleges that Green’s firing was an additional and final act of retaliation and discrimination. The suit seeks injunctive and monetary relief under Title VII, as well as under 42 U.S.C. §§ 1981, 1983 and 1985. Arguing that this suit is a reincarnation of Green I, IDOT has moved to dismiss.

II.

The doctrine of res judicata, or “claim preclusion,” serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Under this doctrine, resolution of a previous case bars litigation/ of a later claim if the following elements are present: (1) the final judgment in the previous case was on the merits; (2) parties or their privies in the two suits/are the same; and (3) the causes of action in both suits are the same. Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir.1983), cert, denied, — U.S.-, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984); Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982).

It is clear that the first and second elements are met here. The dismissal of Green I for want of prosecution under Fed.R.Civ.P. 41(b) was a “final judgment on the merits” for res judicata purposes. See, e.g., Kotakis v. Elgin, Joliet & Eastern Railway Co., 520 F.2d 570, 576-77 (7th Cir.1975), cert, denied, 423 U.S. 1016, 96 S.Ct. 451, 46 L.Ed.2d 388 (1975); 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 4440 (1981) at 362-363. Likewise, the parties of Green I and Green II are identical under the res judicata doctrine. While Green II joins two IDOT officials as defendants, a government agency and its employees are in privity for res judicata purposes. See, e.g., Mandarino v. Pollard, 718 F.2d at 850.

The more complex issue in this case is whether Green I and Green II set forth the same cause of action. The Seventh Circuit has used the following test to determine whether two suits state identical causes of action:

[A] cause of action consists of a single core of operative facts which give the plaintiff a right to seek redress for the wrong concerned. Even 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. If the same facts are essential to the maintenance of both proceedings or the same evidence is needed to sustain both, then there is identity between the allegedly different causes of action asserted, and res judicata bars the latter section.

Lee v. City of Peoria, 685 F.2d at 200, quoting Morris v. Union Oil of California, 96 Ill.App.3d 148, 157, 51 Ill.Dec. 770, 777, 421 N.E.2d 278, 285 (1981). As a corollary to this rule, res judicata operates to bar not only those matters which were actually raised in the prior action but any matter which might have been raised. Harper Plastics, Inc. v. Amoco Chemical Corp., 657 F.2d 939, 945 (7th Cir.1981). In other words, an unsuccessful plaintiff may not sneak around the doctrine of res judicata by cloaking a cause of action in a theory of recovery untried in the previous suit. Lambert v. Conrad, 536 F.2d 1183, 1185 (7th Cir.1976). Under these principles it is clear that much of the present complaint is barred. Res judicata bars relief here to the extent it is based upon acts which occurred before the first complaint was filed, as those acts are part of the same “core of facts” that Green alleged in his first suit. Thus, res judicata bars allegations concerning the failure to promote Green in 1978, see complaint ¶ 16(a), and the various acts of harassment which occurred before Green I was filed.

However, many of the facts alleged in the pending suit, while of the same nature as those alleged in Green I, occurred after the filing but before the dismissal of that case. For example, IDOT allegedly discharged Green in July 1983, continued to harass him until that date and denied him promotion in September 1982. Because these alleged acts occurred after the first suit was filed, the principles of res judicata may dictate a different result for these acts. A continuing course of conduct by a defendant, even if related to conduct complained of in an earlier suit, generally creates a separate cause of action. See, e.g., Lawlor v. National Screen Service Corp., 349 U.S. 322, 328-29, 75 S.Ct. 865, 868-69, 99 L.Ed. 1122 (1955) (continuing antitrust violations). Thus, the doctrine of res judicata does not stop a plaintiff from bringing a retaliation claim based on acts occurring after judgment in the first suit. See Kilgoar v. Colbert County Bd. of Educ., 578 F.2d 1033, 1035 (5th Cir.1978); Dawkins v. Nabisco, Inc., 549 F.2d 396, 397 (5th Cir.1977), cert, denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Kavanaugh v. Sperry Univac, 511 F.Supp. 705, 706 (N.D.Ill.1981) (retaliatory refusal to rehire employee who had lost previous employment discrimination claim creates separate cause of action), affd, 729 F.2d 1464 (7th Cir.1984), cert, denied, — U.S. —, 104 S.Ct. 2665, 81 L.Ed.2d 370 (1984); 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 4409 (1981) at 81; see also Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 669 F.2d 490, 494 (7th Cir. 1982) (continuing violations of antitrust laws create separate causes of action), cert, denied, 459 U.S. 943, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982); International Harvester Co. v. Occupational Safety and Health Review Comm’n., 628 F.2d 982, 985-86 (7th Cir.1980) (continuing violation of administrative regulation). In all of these cases, however, the conduct complained of in the second suit occurred after judgment had been entered in the first. The precise question here, then, is whether any of the conduct in this case which occurred after the filing of the first complaint, but before judgment, is barred. There is no clear rule prescribing how to deal with this issue:

Most cases assume that an action need include only the portions of the claim due at the time of commencing that action. The Court of Claims, however, appears to follow a rule that requires a plaintiff to amend to add later maturing claims. The difficulty presented by this alternative lies in identifying a suitable alternative stopping point. Substantial disruption could result from forced amendment at any time after significant discovery has been accomplished, and it is hard to justify any test relating to the progress of discovery or other pretrial events so clear that plaintiffs could afford to apply it without seeking explicit judicial guidance. Perhaps the best rule would be that claims for damages need include only matters arising out of injuries inflicted before the commencement of suit, while claims for declaratory or injunctive relief that intrinsically deal with conduct persisting through trial or into the future should embrace all matters arising prior to the close of trial or even judgment.

18 Wright, Miller & Cooper, § 4409 at 76-77. We agree with this Treatise that a general rule requiring forced amendment would be difficult to apply. This is especially true in Title VII suits, where an employee generally cannot file a later maturing claim without first filing a charge with the EEOC.

Applying these principles to this case, we find that res judicata does not bar Green’s claims based on the discharge in July 1983 and the denial of promotion in September 1982. The discharge, whether based on retaliation, race or both, created a new separate claim for relief under Title VII. See 42 U.S.C. § 2000e-3(a). Green should not have been required to seek leave to amend his first suit, then two years old, to add this new claim. But even if res judicata implied a general duty to amend, Green probably could not have amended his earlier suit to allege this claim, because he had not yet completed the administrative process. As such, he cannot now be barred from pressing this claim. See Restatement (Second) of Judgments, § 26(l)(c) (1982) (claim preclusion does not apply where limitations on first court’s jurisdiction prevented litigation of theory or availability of remedy). Similarly, the claim alleging the September 1982 denial of promotion is not barred. We think that this denial of promotion, being a discrete and obvious act, constituted a separate, rather than continuing, violation of Title VII, as well as 42 U.S.C. §§ 1981, 1983 and 1985. See Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983); Zewde v. Elgin Community College, 601 F.Supp. 1237, 1242-1243 (N.D.Ill.1984) (Aspen, J.). Although Green could have sought leave to amend Green I to allege this claim which arose after that suit had been filed, we decline to read the doctrine of res judicata to require that Green should have amended his first complaint to add this claim. As noted above, it is difficult, if not impossible, for a court to draw a line as to when in a previous lawsuit a plaintiff should have tried to add a later-maturing claim. A rule requiring amendment would be difficult for courts and plaintiffs to apply and could disrupt or needlessly complicate the first suit. Thus, we follow the approach suggested by Professors Wright, Miller & Cooper and draw the line at the date of filing of the first suit. Accordingly, the discrete claim alleging unlawful denial of promotion in 1982 is not barred by res judicata.

Green alleges that this failure to promote him violates Title VII, as well as 42 U.S.C. §§ 1981, 1983 and 1985. We think it proper to digress briefly from our res judicata analysis to point out that the Court lacks jurisdiction over this claim to the extent it is grounded in Title VII. Because the denial of promotion amounted to a separate violation of Title VII, Green should have filed a timely EEOC charge concerning the alleged wrong. So far as we know, he never filed such a charge. While his July 8, 1983 charge was perhaps timely for acts occurring the previous September, that charge does not mention the failure to promote, and its content is not “like or reasonably related to” the denial of promotion. Thus, jurisdictional grounds independent of res judicata bar a Title VII claim based on the failure to promote. As noted above, however, other avenues of relief are still open to Green.

To wrap up the res judicata analysis, we must deal with Green’s claim concerning the alleged harassment. Green alleges that the harassment was regular and continual beginning at least as early as 1980. The conduct was challenged in Green I and continued after that suit was filed until Green was fired. In contrast to the discharge or denial of promotion, this alleged daily oppression did continually violate Title VII. Given the continuing nature of this harassment, Green’s prayer for injunctive relief would have stopped this harassment from continuing beyond the date of judgment. We think that the principles discussed above bar Green’s current claim for relief based on the .harassment. Green is seeking a second chance to litigate the same harassment he complained of in Green I, even though he had a full and fair chance to obtain complete relief in Green I. This is precisely what the doctrine of res judicata is meant to prevent. The bedrock principle of preclusion doctrine is that a plaintiff be limited to one full and fair opportunity to litigate his claim. See Allen v. McCurry, 449 U.S. 90, 94-96, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980). Where a claim for injunctive relief deals with continuing conduct which by nature persists through trial, the plaintiff can usually litigate the claim fully without having to amend to seek complete redress. Thus, we agree with the above suggestion of Professors Wright, Miller and Cooper that it may be fair to preclude later claims for injunctive relief which are based on a continual course of conduct which occurred before judgment had been entered in a previous suit. Green’s claim based on the harassment is just such a claim and is barred.

Our distinction above between the continuing harassment on the one hand and the discharge and denied promotion on the other derives some indirect support from the recent case of Ohio-Sealy Mattress Mfg. Co. v. Kaplan, 745 F.2d 441 (7th Cir.1984). The Court there held that res judicata did not bar a later claim for damages based upon conduct which occurred before verdict in a previous suit, because the damages had been speculative when the first trial took place. Id. at 447-451. However, the Court held that the previous case’s rulings on injunctive relief were res judicata as to continuing post-verdict violations, because the district court had given the parties an opportunity to argue whether injunctive relief was proper. Id. at 451-52. While the Court did not address the issue directly involved here — whether res judicata imposes, in effect, a duty to amend the complaint to add claims accruing while the first suit is pending — the Court’s holdings do lend some support for the rule proposed by Professors Wright, Miller and Cooper. Where a continuing course of conduct is amenable to injunctive relief in the first suit, res judicata should normally bar later claims for injunctive relief based upon conduct which occurred both before or during the first lawsuit. However, claims seeking damages may require a different result, either because as in Ohio-Sealy, damages were speculative at the time of the first trial, or because, as suggested above, forced amendment would cause disruption in the first suit.

In sum, our rulings above pare this suit as follows. The alleged discriminatory discharge of July 1983 is not barred. The alleged denial of promotion of September 1982 is likewise not barred by res judicata, but the Title VII component of this claim is jurisdictionally barred. All of the other alleged acts — the earlier denials of promotion and the harassment — are barred.

III.

IDOT raises a few more issues, which we can dispose of quickly. Citing Torres v. Wisconsin Dept, of Health & Social Services, 592 F.Supp. 922 (E.D.Wis. 1984), IDOT argues that Title VII provides Green an exclusive avenue of relief, and that his claims for relief under 42 U.S.C. §§ 1981, 1983 and 1985 must be stricken. We disagree. We recently decided this issue, disagreeing with Torres. See Zewde, 601 F.Supp. at 1244-1248. In Zewde, we held that where a set of facts gives rise to a Title VII claim and to a claim based on independent constitutional grounds, a plaintiff may allege alternative claims under Title VII and § 1983. 601 F.Supp. at 1245. A recent Sixth Circuit case supports this holding. Day v. Wayne County Bd. of Auditors, 749 F.2d 1199 (6th Cir.1984); accord Storey v. Bd. of Regents, 660 F.Supp. 838 (D.Wis.1985) (Doyle, J.). The Court in Day held that Title VII is exclusive where the § 1983 violation is premised only on a violation of Title VII. However,

[w]here an employee establishes employer conduct which violates both Title VII and rights derived from another source— the Constitution or a federal statute-r-which existed at the time of the enactment of Title VII, the claim based on the other source is independent of the Title VII claim, and the plaintiff may seek the remedies provided by § 1983 in addition to those created by Title VII.

749 F.2d at 1205. In accordance with Day and Zewde, we hold as follows. Inasmuch as Green alleges that his discharge violated the federal Constitution as well as Title VII, his § 1983 claim is valid; the § 1983 claim is stricken to the extent it realleges a violation of Title VII. The same holds true for the alleged violations of §§ 1985 and 1981. Like § 1983, § 1985 creates no substantive rights; in this context the same rule should apply to both. Day, 749 F.2d at 1204. Similarly, the § 1981 claim survives to the extent it alleges infringement of rights which existed before the enactment of Title VIL Id.

The individual defendants argue that they must be dismissed from the Title VII claim, since they were not named as respondents in the EEOC charge. We agree. See Zewde, 601 F.Supp. at 1243. This dismissal, of course, does not extend to the concurrent claims for relief under §§ 1981, 1983 or 1985.

IV.

The complaint is dismissed to the extent it seeks relief for acts occurring before Green I was filed and for the alleged acts of harassment. The Title VII claim based on the September 1982 denial of promotion is dismissed. The individual defendants are dismissed from the Title VII claims. In all other respects, the motion to dismiss is denied. It is so ordered.

      . For the purposes of a motion to dismiss, the Court usually assumes the truth of the complaint’s allegations and does not look beyond its four corners. However, because the parties have submitted other documents with their memoranda, we shall consider IDOT’s motion under Rule 56. See Fed.R.Civ.P. 12(b). In any event, the material facts listed below are undisputed.

      . The 1981 complaint also alleged violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., 42 U.S.C. § 1981 and constitutional violations via 42 U.S.C. § 1983.

      . Rule 41(b) states in relevant part:
      For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.
      Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

      . Because the alleged retaliation constituted an independent violation of Title VII, Green had to file EEOC charges before filing suit. 42 U.S.C. § 2000e-5(e). United Airlines v. Evans, 431 U.S. 553, 554-55, 97 S.Ct. 1885, 1887, 52 L.Ed.2d 571 (1977). Green had done so by filing a charge soon after being fired. While a few courts have exempted certain retaliation claims from these filing requirements, see Pouncy v. Prudential Ins. Co. of America, 499 F.Supp. 427, 435 (S.D. Tex.1980), affd, 668 F.2d 795, 797 n. 4 (5th Cir.1982); Curran v. Portland Superintending School Committee, 435 F.Supp. 1063, 1075 (D.Me.1977), it is far from certain that Green would have been allowed to amend his 1981 complaint to add the reprisal claim without first filing with the EEOC. For this reason, Green should not be punished for following the normal Title VII filing procedures.

      . Green had at least 240, and perhaps as much as 300, days in which to file a charge. See Zewde, 601 F.Supp. at 1241-1242; see abo Anderson v. Illinois Tool Works, 753 F.2d 622 (7th Cir.1985). The July filing was in the upper part of this range and might have been late as far as the September 1982 acts. However, we have assumed for this opinion that the filing was timely.

      . See Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976) (facts not in EEOC charge may be alleged in complaint if "like or reasonably related to" allegations in charge), cert, denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976).

      . We also think that Green could have obtained full monetary relief for the continued harassment without having to amend his complaint.

      . Because § 1983 authorizes relief for state violations of the “constitution and laws" of the United States, a plaintiff could, in theory, base a § 1983 claim solely on a violation of Title VII. See Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (§ 1983 generally authorizes suits to redress violations by state officials of rights created by federal statutes); Huebschen v. Dept. of Health & Social Services, 547 F.Supp. 1168, 1173-75 (W.D.Wis.1982) (plaintiff may allege a Title VII claim via § 1983), rev'd on other grounds, 716 F.2d 1167 (7th Cir.1983). Day reaches a contrary result. In Zewde, we stated in dictum that a plaintiff probably could not reassert his Title VII substantive rights via the § 1983 conduit. 601 F.Supp. at 1245. In this case, we affirm that dictum and hold that Green’s § 1983 claim is dismissed to the limited extent it reasserts rights created by Title VII.

      . IDOT's equitable estoppel arguments lack merit.