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June 10, 1991

Edward M. Jones, Plaintiff,
Richard P. Doria, Sheriff of DuPage County and John C. Smith, Deputy Chief of the DuPage County Sheriff's Department, Defendants

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR


 Edward Jones ("Jones") has sued DuPage County Sheriff Richard Doria ("Doria") and Deputy Chief of DuPage County Sheriff's Department John Smith ("Smith") in both their individual and official capacities under 42 U.S.C. ยง 1983 ("Section 1983"). Jones' Complaint seeks damages, injunctive relief and reinstatement based on defendants' alleged violations of his Fourteenth Amendment right to due process in connection with the suspension and then the later termination of Jones' employment without a predeprivation hearing at either time.

 Both Doria and Smith have moved for dismissal under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), *fn1" asserting that the Complaint:

1. fails to state a claim upon which relief can be granted and
2. is barred under the doctrine of res judicata. *fn2"


 Jones was hired by the DuPage County Sheriff's Department as a Deputy Sheriff Corrections Officer in September 1983 (para. 7). After successfully completing his one-year probationary period Jones became a permanent employee, and he remained on active duty until July 22, 1989, when Doria and Smith suspended him without pay for misconduct that had allegedly occurred a day earlier (paras. 8-9).

 Jones had an opportunity to appeal his suspension under General Order DEP 4-26, entitled "Departmental Discipline" (the "Department Policy," P. Mem. Ex. 5), and he does not contend that he was denied that right. Instead of pursuing his right to appeal, on December 1, 1989 Jones spoke with Smith to inquire about his returning to work, and Smith advised him that the Sheriff would fire Jones should he not resign from the Sheriff's Department (para. 11).

 Jones alleges (para. 12) that:

as a result of coercion and under influence employed by the Defendants, plaintiff involuntarily, conditionally resigned from the Sheriff's Department on December 22, 1989 . . . .

 That resignation was made effective January 1, 1990. Doria had not yet accepted Jones' resignation when on June 5, 1990, through his attorney, Jones formally withdrew his resignation and declared himself available for work (para. 14 and P. Mem. Ex. 2). Two days later Doria once again suspended Jones without pay pending the outcome of charges filed with the DuPage County Merit Commission ("Commission") on that same date (paras. 15-16).

 Jones appeared before Commission and denied the allegations contained in Doria's complaint against him (para. 17). On October 22, 1990, without conducting any evidentiary hearing, Commission dismissed Doria's complaint against Jones for lack of jurisdiction because Commission held that Jones had resigned (para. 18 and Ex. A to D. Mem. Ex. 1) and was thus not currently a member of the Sheriff's Department. Jones has since filed a state court action seeking administrative review of Commission's decision (D. Mem. Ex. 1). This action followed.

 Issue Preclusion

 Jones claims a twofold deprivation of his property rights:

1. his suspension, which lasted from July 22, 1989 until his resignation (which, as already stated, he made effective on January 1, 1990); and
2. the effective termination of his employment, which Jones claims was both conditional and involuntary -- and hence a constructive discharge (para. 12).

 Although no state agency or court has addressed Jones' temporary loss of his job during the period of suspension, Commission did determine the effectiveness of Jones' termination when it dismissed Doria's complaint against Jones for lack of jurisdiction because it held that due to his resignation (Ex. A to D. Mem. Ex. 1, and see para. 18 *fn3" ):

 Commission's decision that Jones' termination -- the result of his resignation -- was legally effective cannot be reexamined by this Court. University of Tennessee v. Elliott, 478 U.S. 788, 799, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986) (footnote omitted) explains that a decision by a state agency acting in a judicial capacity must be given the "same preclusive effect to which it would be entitled in the State's courts." And Buckhalter v. Pepsi-Cola General Bottlers, Inc., 820 F.2d 892, 895 (7th Cir. 1987) teaches:

From our reading of the Supreme Court's decision in Elliott and our own research we have not discovered any legislative history establishing that Congress intended that the civil rights statutes were to foreclose application of the common-law doctrine of preclusion in discharge cases . . ., and therefore [a plaintiff] is precluded from relitigating his section 1983 claim in federal courts if: (1) the State agency has acted in a judicial capacity; (2) has resolved disputed issues of fact properly before it; and (3) the parties have had an adequate opportunity to litigate the issues.

 First of all, Commission clearly acted in a judicial capacity when it dismissed the Sheriff's complaint against Jones. It is the agency authorized by law to review a sheriff's decision to suspend or fire a deputy sheriff. Wagner v. Kramer, 108 Ill. 2d 413, 420, 484 N.E.2d 1073, 1076, 92 Ill. Dec. 218 (1985) confirms that principle:

From an examination of the statutes set out above and based on Kropel [ v. Conlisk, 60 Ill. 2d 17, 322 N.E.2d 793 (1975)] and its reasoning, the Sheriff's Merit System Act must be construed, under the public policy of this State, to provide some method of review of disciplinary suspensions imposed by the sheriff. We consider that the sheriff's merit commission is the proper body to review disciplinary suspensions under its established procedures set out in section 14 (Ill.Rev.Stat.1983, ch. 125, par. 164), which section also provides an avenue of judicial review of orders of the commission to the circuit court under the Administrative Review Law (Ill.Rev.Stat. 1983, ch. 110, par. 3-101 et seq.).

 Second, Commission necessarily decided the issue of the legal effectiveness of Jones' resignation when it ruled on Board's motion to dismiss the case. Commission states immediately before the finding quoted in n. 3 (Ex. A to D. Mem. Ex. 1):

The parties have been fully advised in the premises and have fully briefed the issue of the questioned resignation of Edward M. Jones from the ...

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