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March 5, 1985


The opinion of the court was delivered by: 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.*fn1 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.


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 VII.*fn2

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.


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.*fn3 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

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