The opinion of the court was delivered by: Moran, District Judge.
Defendant, Sperry Univac ("Sperry"), has filed a motion to dismiss this
by plaintiff, Matthew Kavanaugh, under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. Sperry urges that the current
action is barred by the doctrine of res judicata on the basis of a prior
action filed by Kavanaugh in this district. In Kavanaugh v. Sperry
Univac, No. 76 C 889, slip opinion (N.D.Ill. September 27, 1977), Judge
Leighton granted Sperry's motion for summary judgment. This order was
affirmed by the Seventh Circuit in an unpublished order. Kavanaugh v.
Grundman & Sperry Univac, 577 F.2d 748 (7th Cir. 1978).
In the 1975 action, plaintiff filed charges with the EEOC alleging that
Sperry had failed to rehire him*fn1 because he was not of German ancestry
(Kavanaugh is Irish), the ancestry of a vice-president in Sperry's
Chicago office. In the instant suit, plaintiff realleges this same
allegation in Count II of his complaint. The complaint alleges in Count
I, which for the purposes of this motion is taken as true, that Kavanaugh
reapplied for a position at Sperry in 1979 and that Sperry refused to
rehire him because of the charges he filed with the EEOC described
above. For the reasons set forth below, Sperry's motion to dismiss is
denied as to Count I and is granted as to Count II.
Count II clearly is barred by the doctrine of res judicata. The
gravamen of this claim is stated in ¶ 3 of the complaint which
states, "the defendant's action with respect to his charge of 1975 was
unwarranted and improper. . . ." It is obvious that Count II is merely
another attempt by plaintiff to relitigate his initial dispute with his
former employer. Kavanaugh, however, had his day in court on this claim
before Judge Leighton in 1977 and before a panel of the Seventh Circuit
in 1978. He is not entitled to another crack here. Stevenson v.
International Paper Co., 516 F.2d 103, 108-109 (5th Cir. 1975). Count II
It is considerably more difficult summarily to dispose of Count I, the
retaliatory refusal to rehire claim. Since plaintiff did not reapply at
Sperry until 1979, obviously this claim could not have been subject to
prior litigation. Moreover, contrary to Sperry's suggestion, the prior
litigation does not necessarily preclude Kavanaugh from establishing a
prima facie case under the standards of McDonnell-Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972). The 1975 action
conclusively established only that plaintiff was not denied reemployment
because of discrimination. It was not ascertained whether or not he was
qualified for the position for which he applied. Accordingly, the
principles of res judicata do not apply. See Kilgoar v. Colbert County
Board of Education, 578 F.2d 1033 (5th Cir. 1978); Dawkins v. Nabisco,
Inc., 549 F.2d 396 (5th Cir.), cert. den. 433 U.S. 910, 97 S.Ct. 2978, 53
L.Ed.2d 1095 (1977).
It would appear, therefore, that Kavanaugh has stated a claim under
§ 704(a) of the 1964 Civil Rights Act. 42 U.S.C. § 2000e-3. That
section provides, in pertinent part:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
or applicants for employment, . . . because he has
opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted or participated in any
manner in an investigation, proceeding or hearing
under this subchapter.
Though the conclusion that Kavanaugh has stated a claim is sufficient
to dispose of the matters before the court, some further comments are
appropriate, given the factual setting of this case. In a generic sense,
plaintiff's right to complain to the EEOC or file a civil action is
protected by Title VII. However, the safeguards afforded by the statute
are not unlimited in application. "Congress did not intend by Title VII
. . . to guarantee a job to every person regardless of qualifications."
Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28
L.Ed.2d 158 (1971).
Nor, in the court's view, was the Act designed to license an endless
series of essentially frivolous and harassing claims by an employee
against this former employer. Rather, as the court observed in EEOC v.
Kallir, Phillips, Ross, Inc., 401 F. Supp. 66 (S.D.N.Y. 1975):
Under some circumstances, an employee's conduct . . .
may be so excessive and so deliberately calculated to
inflict needless economic hardship on the employer
that the employee loses the protection of [Title
Assuming than that Kavanaugh can actually prove the allegations of his
complaint, the burden would be on Sperry to articulate a "legitimate,
nondiscriminatory reason for the employee's rejection." McDonnell-Douglas
v. Green, supra at 802, 93 S.Ct. at 1824. And an evaluation of the merits
of Sperry's refusal to rehire plaintiff must be made by balancing the
purposes of Title VII against the need recognized by Congress to refrain
from hamstringing legitimate employer discretion in the hiring and
control of its personnel. See Hochstadt v. Worcester Foundation for
Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1975).
In the present case, this court does not foreclose the possibility that
Kavanaugh's history of prior litigation against Sperry, while normally
protected, constituted non-actionable grounds for the refusal to reemploy
plaintiff. More specifically, Judge Leighton previously concluded, in
granting summary judgment, that "the facts will not support even a prima
facie showing of unlawful employment discrimination", and the Court of
Appeals agreed. Those, circumstances, bearing, as they do, both on
plaintiff's qualifications as an employee and the employer's reasonable
apprehension of the consequences should it resume the employment
relationship, may render an otherwise unlawful retaliatory action a
"legitimate, non-discriminatory" response by Sperry which is beyond the
reach of Title VII.*fn2 This, however, is something that can only be
determined after further proceedings.
Accordingly, it is concluded that defendant's motion to dismiss is
granted as to Count II and denied as to Count I. In addition, plaintiff
is admonished to reevaluate the merits of his case in light of the
opinions expressed herein and the possibility that plaintiff runs the
not-insignificant risk that attorneys' fees and costs may be awarded
against him should defendant ultimately prevail in this litigation.
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