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January 27, 2004.

MICHAEL L. SHAKMAN and PAUL M. LURIE, et al., Plaintiffs
THE DEMOCRATIC PARTY ORGANIZATION OF COOK COUNTY, et al., Defendants CAMILLE KOZLOWSKI, et al., Petitioners, v. JOHN STROGER, in his official capacity as President of the Cook County Board of Commissioners and EDWIN BURNETTE in his official capacity as the Cook County Public Defender, Respondents

The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge


On July 11, 2003, Camille Kozlowski, Darlene Williams, Susan Horn, Vicki Rogers, Moses Collins, Marc Miller and Kenneth Fletcher ("petitioners") — all are, or were until recently, employees of the Cook County Public Defender's Office — petitioned this court to enforce a consent judgment entered into by the County of Cook and its officers against defendants John Stroger and Edwin Burnette ("Cook County") in their official capacities as officers of the County of Cook. Specifically, petitioners allege that Cook County has violated two provisions of a consent judgment resulting from Page 2 Michael L. Shakman et al. v. The Democratic Organization of Cook County, et al., No. 69 C 2145 (N.D. Ill, January 7, 1994) (Williams, J.) (hereinafter "1994 Consent Judgment") in that Cook County (1) wrongfully designated, in violation of the consent judgment, positions as Shakman exempt and (2) failed to post notices containing descriptions of available jobs as required by the consent judgment.*fn1 On November 17, 2003, Cook County filed a motion to dismiss petitioners' complaint in its entirety on the basis of claim preclusion (res judicata) or issue preclusion (collateral estoppel) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion to dismiss the petition is granted.


  All of the individual petitioners before this court are also the same and only plaintiff's in an ongoing case, Case No. 00 C 5296, pending before Magistrate Judge Arlander Keys, on consent, hereinafter referred to as Kozlowski I. Cook County argues that a ruling in Kozlowski I granting it partial summary judgment acts to bar the petitioners' present claims because of the doctrines of claim preclusion and issue preclusion. Therefore, it is necessary to describe in some detail the proceedings in Kozlowski I. Page 3

  The original complaint in Kozlowski I, filed on August 30, 2000, named a number of Cook County officials, all in their official capacities, and also named Rita Fry (former Cook County Public Defender) in her individual and official capacity. This original complaint alleged two counts against the city: violations of Title VII and a Section 1983 claim for violations of Equal Protection and Due Process in that Cook County's employment practices discriminated against females. On February 2, 2001, Magistrate Judge Keys dismissed nearly all the named defendants, including Rita Fry in her individual capacity, leaving only the County of Cook and Rita Fry in her official capacity as defendants. On July 11, 2001, plaintiffs filed their First Amended Complaint naming Rita Fry in her official capacity as Cook County Public Defender and the County of Cook as defendants and alleging the same two counts as in the previous complaint. Discovery proceeded, and on March 29, 2002, plaintiffs filed a Second Amended Complaint. This Second Amended Complaint was the precursor to the summary judgment decision by Magistrate Judge Keys that forms the basis of Cook County's arguments that petitioners' present petition before this court is barred.

  The Second Amended Complaint, and all of the litigation in Kozlowski I, was brought by the plaintiffs who are the same parties bringing the present petition before this court. This Second Amended Complaint named as defendants Rita Fry in her official capacity as Cook County Public Defender and the County of Cook, This Second Amended Complaint alleged six counts, including count IV, which alleged violations of a consent decree (hereinafter "1983 Consent Decree") entered into pursuant to the litigation in Shakman v. Democratic Organization of Cook County, 569 F. Supp. 177 (N.D.III. 1983), This count alleged that "[n]umerous provisions" of the consent decree in Shakman had been violated, (Second Am. Compl. in Case No. 00 C 5296 ¶ 57.) Plaintiffs moved for summary judgment on three counts, including the part of their Shakman claim alleging improper Page 4 notice. In support of this motion plaintiffs argued that "Defendants have violated the Shakman judgment by failing to post notices of all available job opportunities as required." (Pl.'s Mem. of Law in Supp. of Summ. J. in Case No. 00 C 5296 at 3.) Plaintiffs did not move for summary judgment on their claim that defendants were erroneously classifying positions as Shakman exempt because that claim "necessarily [gave] rise to the consideration of factual matters over which there is not likely to be agreement." (Id. at 5 n.4.) Defendants moved for summary judgment on all counts of plaintiffs' Second Amended Complaint, In regards to plaintiffs' Shakman claim, Cook County argued that it was entitled to summary judgment because plaintiffs failed to provide evidence that "political affiliation played any role in the outcome of any hire or promotion decision in the Public Defender's Office." (Def.'s Mem. of Law in Supp. of Summ. J. in Case No. 00 C 5296 at 51-53,) In response, plaintiffs also filed a memorandum of law opposing the defendant's motion for summary judgment. In this memorandum, under the subheading "Defendants Misconstrue the Nature of Plaintiffs' Shakman Claims and Fail to Meaningfully Address These" plaintiffs/petitioners argued:
Plaintiffs allege that they have been harmed by defendants repeated and persistent violations of the various judgments in Shakman. As stated previously, defendants under the 1983 Shakman judgement are required to post notice of all available job opportunities. . . . The posting must contain a `description of the nature of the job, the qualifications, the pay, and how and where to apply for a job.' . . . . Defendants have admitted that there has never been a posting for any job over a D4 level. . . .
Furthermore, none of the positions claimed by defendants to be Shakman exempt appear on the list which accompanies the 1994 Judgement. . . . Also, defendants have not produced a single document showing that the Court has approved the designation of so-called chief and director positions as exempt. . . . Therefore, defendants have repeatedly violated Shakman by failing to post notice of the availability of these positions — the highest paid in the office — and shielding them from competition.
(Pl's Mem. of Law in Opp'n to Summ. J. in Case No. 00 C 5296 at 28-29.) Plaintiffs go on to quote Page 5 extensively from the 1994 Consent Judgment to argue that no position at the Cook County Public Defender's Office should be classified as Shakman exempt, (Id. at 30-32.)

  On December 30, 2002, Magistrate Judge Keys ruled on defendants' motion for summary judgment. In pertinent part, Magistrate Judge Keys granted defendants summary judgment on plaintiffs' count IV alleging a Shakman violation. In making its ruling Magistrate Judge Keys ruled that to succeed on their claims of Shakman violations, the plaintiffs must provide evidence that the defendants made "employment decisions based on the political affiliations of either the Plaintiffs or the individuals hired to fill the attorney supervisor vacancies," Kozlowski v. Fry, Case No. 00 C 5296, at 55 (N.D. III. Dec, 30, 2002). Magistrate Judge Keys granted the defendants' motion for summary judgment because the plaintiffs presented no evidence to rebut defendants' evidence that employment decisions were not based on political affiliations. Id. The Magistrate Judge also rejected the contention made by plaintiffs that "failure to properly post available job opportunities [and] needlessly classifying jobs as Shakman exempt" violated the Shakman consent decrees, because, in Magistrate Judge Keys' view, "even if [the defendants] . . . failed to post notices of job opportunities and erroneously designated certain positions as Shakman-exempt, these actions alone do not imply that improper political considerations led to the ultimate hiring or promotion decisions." Id. at 55-56. The lack of evidence regarding improper political consideration was fatal to the plaintiffs' case because, according to Magistrate Judge Keys, "the Seventh Circuit has clearly required that plaintiffs prove that political motivation led to unlawful hiring, and Plaintiffs have not presented, nor has the Court itself found, any case law to the contrary." Id. at 55. Furthermore, Magistrate Judge Keys reasoned that to find a Shakman violation without a "showing that a political motivation played any part in [an employment action], then the Court would be allowing a misuse of the protections provided by Page 6 Shakman, and its purpose would be thwarted." Id. at 56.


  Petitioners argue that Cook County has violated the 1994 Consent Judgment by (1) improperly designating certain positions as Shakman exempt and (2) failing to provide the notice of job availability allegedly required by the 1994 Consent Judgment. Cook County argues that petitioners present claims are barred under the doctrines of claim preclusion (res judicata) and issue preclusion (collateral estoppel) because of the Magistrate Judge's December 30, 2002 order granting Cook County summary judgment on the plaintiffs' claim of a Shakman violation.

 1. Claim Preclusion (Res Judicata)

  "The doctrine of res judicata (claim preclusion) requires litigants to join in a single suit all legal and remedial theories that concern a single transaction." Roboserve. Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1034 (7th Cir. 1997) (quoting Perkins v. Board of Trustees of the Univ. of Illinois, 116 F.3d 235, 236 (7th Cir. 1997)). Thus, "claims based on the same, or nearly the same, factual allegations must be joined". Id. (quoting Perkins v. Board of Trustees of the Univ. of Illinois, 116 F.3d 235, 236-37 (7th Cir. 1997). Failure to join such claims results not only in a bar to issues actually decided in prior litigation but also as to any issues which could have been raised in the prior litigation. Id.. Claim preclusion bars a claim when three requirements are met: "(1) an identity of the causes of action; (2) an identity of the parties or their privies; and (3) a final judgment on the merits." Id. (citation omitted).

  A. Identity of the Causes of Action

  For purposes of claim preclusion analysis, "a cause of action consists of a `single core of operative facts' which give rise to a remedy." Id. (quoting Golden v. Barenborg, 53 F.3d 866, 869 (7th Cir. 1995)). As the Seventh Circuit has explained: Page 7

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 alleged different causes of action asserted
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