should have been set forth in a motion to dismiss when the Third
Amended Complaint was filed on April 10, 1979. It should be noted
that the defendants have not supported this ground for summary
judgment with affidavits, interrogatory answers, deposition
transcripts, or any other matter called for in Fed.R.Civ.P.
56(c). The Court will resolve at trial the questions of whether
plaintiffs have met their burdens under the applicable statutes.
The defendants are granted summary judgment on the cause of
action brought by plaintiffs Byrnes, Calliouet, Hershberger,
Rothman, Widlic, and Strobeck, complaining of their discharges.
All issues raised by these individuals in the prior
adjudications, and all issues which could have been raised, are
barred. Defendants' motion for summary judgment is denied as to
the cause of action brought by plaintiffs Jenkins, Doliber,
Peters, and Kish complaining of their own discharges.
Defendants' motion for summary judgment is denied as to the
causes of action complaining of the denial of collective
bargaining representative status for Local 1006, and of the
imposition of an administratorship upon Local 1006.
The issues left open for trial are:
(1) whether the discharges of the plaintiffs Jenkins, Doliber,
Peters, and Kish deprived them of property without due process,
denied them the equal protection of the laws, and/or were
motivated either by racial animus or were effected in retaliation
for the exercise of their First Amendment rights; and if so, the
extent of the involvement of the state and union defendants in
causing such discharges;
(2) whether the denial of collective bargaining representative
status to Local 1006 deprived Local 1006 and/or the individual
plaintiffs of property without due process, deprived them of the
equal protection of the laws, and/or was motivated either by
racial animus or the desire to retaliate against them for the
exercise of their First Amendment rights; and if so, the extent
of the involvement of the state and union defendants in causing
such denial; and
(3) whether the imposition of an administratorship by the
International Union upon Local 1006 deprived Local 1006 and/or
the individual plaintiffs of property without due process,
deprived them of the equal protection of the laws, and/or was
motivated either by racial animus or the desire to retaliate
against them for the exercise of their First Amendment rights;
and if so, the extent of the involvement of the state and union
defendants in causing such imposition.
The parties are ordered to plan their presentation at trial in
accordance with this Memorandum Opinion and Order.
IT IS SO ORDERED.
*fn2 Certain defendants filed an earlier motion for summary
judgment, but it was withdrawn on their own motion on February
12, 1980. At that time, they represented to the Court that "there
do appear to be fact questions which could preclude summary
*fn3 One of the individual union defendants, Richard Wilson, was
never served with process and on July 22, 1982, the Third Amended
Complaint was dismissed without prejudice as to Wilson.
[fn3a] The plaintiffs and defendants are not in agreement as to
whether certain of the plaintiffs now before the Court — Jenkins,
Doliber, Peters, and Kish — were discharged or were merely
suspended. For purposes of deciding the motion for summary
judgment, the Court treats the plaintiffs as discharged, though
some or all of the four named above may subsequently have had
their discharges converted to suspensions. Since defendants'
motion for summary judgment is denied as to these four
plaintiffs, the status of these four — which will be resolved at
trial — does not affect the disposition of the instant motion.
*fn4 Donald Johnson also is a named defendant in this action.
*fn5 The union defendants were not parties or in privity with
parties to either the state administrative or state court
proceedings, so they are unable to assert the bar of res
judicata. Nevertheless, for the reasons stated below, the
disposition of the summary judgment motion on res judicata
grounds as pertains to the state defendants is equally applicable
to the union defendants. See Part II.A.4., infra.
*fn6 Counsel are advised to note Fed.R.Civ.P. 11.
*fn7 The Bloomer court noted that some of the plaintiffs in the
present litigation were not plaintiffs in the earlier action, and
stated: "Assuming arguendo that their privity does not bar the
additional plaintiffs under the doctrine of res judicata, they
have no standing to assert [the violations which are the subject
of the present action]." 655 F.2d at 777 n. 3. This appears to be
a typographical error, and the Court believes the words "lack of"
were intended to precede the word "privity." If the plaintiffs in
the second action were in fact in privity with the plaintiffs in
the prior action, the Court need not have reached the question of
standing. Therefore, reading the missing words into this sentence
of n. 3 also cuts against defendants' argument here.
*fn8 In addition to noting what appears to be an attempt to mislead
the Court into improperly relying on Chasteen, and the failure to
cite controlling authority in this jurisdiction, the Court must
note that the defendants have cited in their brief the case of
Harl v. City of LaSalle, 506 F. Supp. 1067 (N.D.Ill. 1980). This
case was reversed by the Court of Appeals on May 24, 1982.
679 F.2d 123 (7th Cir. 1982). The case which "changed the law"
according to the defendants and compelled the filing of the
instant motion for summary judgment on the eve of trial, Lee v.
City of Peoria, 685 F.2d 196 (7th Cir. 1982), cites the reversal
of Harl by the Court of Appeals. 685 F.2d at 198. It would seem
that defendants' heavy reliance on Lee v. City of Peoria would
have alerted them to the fact that Harl had been reversed 2 1/2
*fn9 The Court notes that the hearing officers of the Illinois Civil
Service Commission heard two days of testimony in Strobeck and
eighteen days in Battle. Witnesses testified and were subject to
cross-examination. Documents were offered and admitted into
The hearing officer in Strobeck submitted to the Commission a
76 paragraph, 12 page document, containing Findings of Fact and
an Analysis. The Commission "read and examined the proofs, oral,
documentary, and written, . . . together with the records and the
findings and rulings" of the hearing officer, and adopted the
hearing officer's report with the exception that it rejected his
The hearing officer in Battle submitted to the Commission a 479
paragraph, 184 page document, containing Findings of Fact and an
Analysis. The Commission reviewed the report and all the evidence
submitted, and adopted it in toto.
It is absolutely clear to this Court that given these
procedures, cf. Davis v. U.S. Steel Supply, 688 F.2d 166, 172 n.
7 (3d Cir. 1982) (en banc), the Illinois courts would give
preclusive effect to the final judgments entered by the Illinois
Though the employees were styled as "Respondents" and the state
as "Petitioner" in the proceedings before the Illinois Civil
Service Commission, in fact it was the employees who requested
that hearings be held (see Report of hearing officer in Strobeck,
Par. 5; Report of hearing officer in Battle, Par. 27).
Nevertheless, even if the plaintiffs in this action were seen as
"defendants" in the prior action, the preclusive effect given to
the prior action would be the same. Cf. Davis v. U.S. Steel
Supply, supra, at 176 n. 12; and 178 (Garth, J. concurring)
("Thus, at least to me, it is now evident that § 1738 bars a
federal proceeding which seeks to litigate the same
discriminatory actions adjudicated in a prior state court
proceeding, even though it was not the plaintiff who chose the
state court forum."); Chasteen, supra.
*fn10 Certain other defenses were urged which relied on the
interpretation and application of state administrative
procedures. Since these defenses are irrelevant here, they are
Lee v. City of Peoria teaches that the legal theories argued by
plaintiffs do not determine whether there is one, or more than
one, cause of action. Rather, it is the core of operative facts
which is determinative, no matter how many legal theories may be
presented to support a recovery under the same facts.
*fn11 It should be noted that the issue of Strobeck's First
Amendment rights was explicitly mentioned by the hearing officer
of the Illinois Civil Service Commission. See Report of hearing
officer, Par. 74.
*fn12 The defendants have, in an offhand way, stated that their
motion for summary judgment is based on "the doctrines of res
judicata and collateral estoppel" (Brief in Support of Motion for
Summary Judgment, at 2). They have not shown how the principles
of collateral estoppel (issue preclusion), as opposed to res
judicata (claim preclusion), are to be applied here. The Court
has not been advised of which issues in the prior actions were
litigated, actually decided, and necessary to the decisions. The
defendants have not carried their burden on the issue of
collateral estoppel as to any cause of action in the Third
Amended Complaint. Therefore, the motion for summary judgment
resting on the defense of collateral estoppel is denied as to all
*fn13 The Court is aware that two statements made by Judge Decker in
an earlier opinion in this case may seem to be inconsistent with
the Court's decision today. See Memorandum Opinion and Order of
October 26, 1977. There, Judge Decker stated: "At the minimum,
the state case now pending will determine whether the dismissal
of the striking employees was proper under Illinois law. A
decision that the dismissals were proper would have no effect on
this case. As discussed above, the court has already concluded
that engaging in an illegal strike is a valid grounds [sic] for
dismissal of a public employee. The only question remaining is
whether the state can demonstrate that it relied only on
constitutionally permissible grounds for dismissal" (slip
opinion, at 5-6). Second, in response to the defendants' argument
that the conspiracy theory would be decided by the state courts,
Judge Decker stated: "The International is not a party to the
state proceedings. Thus, it is not clear at this point that the
conspiracy theory will receive a full hearing in state court"
(slip opinion, at 7).
Several things must be noted. First, the context in which Judge
Decker made these statements was a decision denying defendants'
motion that the court abstain from deciding this case for reasons
of "federalism, comity and estoppel." Judge Decker carefully
considered the abstention law and decided that it would not be
appropriate in this case. In following Colorado River Water
Conservation District v. United States, 424 U.S. 800, 96 S.Ct.
1236, 47 L.Ed.2d 483 (1976), he stated: "The Supreme Court,
addressing this question recently for the first time, said that
the federal courts have a duty to exercise their jurisdiction
when properly invoked, and that ordinarily both cases should
proceed independently, with the first case going to judgment
becoming res judicata in the other" (slip opinion, at 8). Insofar
as defendants' motion is granted as to some of the plaintiffs on
one of the claims, that is exactly what has happened: the Court
has exercised its jurisdiction, and the first case has become res
judicata of the second. As shown above, the state courts did pass
on the question of the constitutionality of the dismissals.
Second, as noted above the plaintiffs will be able to pursue
the conspiracy claim based on the imposition of the
administratorship by the union defendants. Since as Judge Decker
had predicted that conspiracy theory did not receive a full
hearing in state court, the plaintiffs will be able to present it
here as it touches the alleged ouster of the leadership of Local
1006. However, as it implicates the discharge of the six
plaintiffs from their jobs, the conspiracy theory is barred.
*fn14 Utah Construction employed principles of collateral estoppel
(issue preclusion) rather than res judicata (claim preclusion),
and most cases following Utah Construction also seem to be
collateral estoppel cases. For purposes of deciding the instant
motion, the Court assumes that administrative proceedings may be
given both collateral estoppel and res judicata effect.
*fn15 The following paragraphs and subsections of the Third Amended
Complaint deal with the allegations relevant to the
administratorship: 5, 6, 10, 28-33, 36.f., and 38.b., c., g., h.,
i., n., s., t., u.