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King v. Burlington Northern & Santa Fe Railway Co.

August 19, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 4794-Rebecca R. Pallmeyer, Judge.

The opinion of the court was delivered by: Wood, Circuit Judge


Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

Plaintiff Geraldine King worked as a ticket clerk for Defendant Burlington Northern & Santa Fe Railway Company ("Burlington"). Following a theft incident, Burlington filed a criminal complaint against King and fired her. The criminal proceedings, however, terminated in King's favor. After what she saw as her vindication, she filed a civil suit against Burlington for malicious prosecution. This time she was unsuccessful: the district court granted summary judgment in favor of Burlington. We find that King failed to satisfy her burden on summary judgment with respect to at least one element of her claim. Because she cannot establish the date when Burlington filed its criminal complaint, she is also unable to show that Burlington lacked probable cause as of the time of the filing of charges. For that reason, we affirm.


In March 2003, Sue Walker, the Chief Clerk for Burlington, noticed a discrepancy in the ticket inventory at the Aurora Station. One hundred 10-ride tickets were missing. After a thorough search, Burlington concluded that the tickets had been stolen, and on March 17 it launched an investigation, for which Special Agent Dale Lange was responsible. On March 26, Lange located a passenger whose ticket matched one of the missing numbers; the ticket showed that it had been issued on March 24. A hole-punch on the ticket revealed that it had first been used on a 5:25 a.m. train out of Aurora on that same day. Lange testified that the passenger identified King as the person who sold him the ticket. Four of the missing tickets were eventually tracked down after Burlington employees were told to be on the lookout for certain serial numbers. The first punch on each one occurred at times when only King was on duty selling tickets.

Lange filed a criminal complaint in the Circuit Court of Kane County, Illinois, accusing King of stealing the missing tickets. The date of the filing is disputed: King asserts that it was on March 24, 2003 (and thus before the date when Lange found the first missing ticket), while Burlington says that Lange filed the complaint after the passenger holding the suspect ticket identified King. The district court observed that neither side submitted a date-stamped copy of the criminal complaint as an exhibit.

At the same time, Burlington commenced proceedings under the collective bargaining agreement ("CBA") it had with King's union, the Transportation Communications Union Local No. 781. It held an initial hearing on April 10, 2003, to determine what role, if any, King had in the alleged theft of the ticket that Lange had recovered on March 26. King was present and represented by the union. A second hearing took place on May 2, 2003, by which time two additional missing tickets had been recovered and linked to King. One of those tickets was stamped as sold on January 29, 2003, and the deposit slip for the check used in payment was written in King's handwriting. The other was sold on March 7, 2003, and once again the first punch was for a very early train (the 4:47 a.m.). King was working at the relevant times on both January 29, 2003, and March 7, 2003, but she reported no revenue that would have corresponded with the sale of the two tickets.

In light of the information presented at the hearings, Burlington fired King. She exhausted the administrative appeal process, which culminated in a review by the System Board of Adjustment, an arbitration panel convened pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. The Board upheld King's discharge, finding that Burlington was able to establish a convincing case that [King] was the individual who sold and benefitted from the sale of the missing tickets. The circumstantial evidence is strong that she was the only person who could have done so. While a question about [King's] role might have been raised when one missing ticket appeared, the presence of additional missing tickets all connected to Ms. King make for a compelling case.

In the meantime, on November 16, 2004, Burlington's criminal complaint was dismissed because the complaining witness, Lange, did not present himself for the trial (even though he was in the courtroom that morning). The criminal case was thus terminated in King's favor, laying the groundwork for King's current suit for malicious prosecution.

Before any discovery took place, Burlington moved for summary judgment on the basis of collateral estoppel. It claimed that the System Board of Adjustment had already made a finding on the question whether Burlington had cause to believe that King stole the tickets, and that this finding precludes King from relitigating the issue of probable cause, a necessary element in her malicious prosecution claim. King objected, claiming that she needed discovery to adduce facts about the prior proceedings in order to demonstrate why the conditions necessary for collateral estoppel were not satisfied. She also wanted to depose Lange to support the merits of her claim for malicious prosecution. She hoped to show that Burlington had acted in bad faith or with malice (another element of malicious prosecution), because its investigation focused solely on King.

The district court thought that the facts relevant to the issue of collateral estoppel were not really in dispute. It instructed King to submit Requests for Admission, and after that, the court indicated it would decide whether discovery was necessary. Eventually the court was satisfied that it could rule on the motion for summary judgment even taking as true King's contentions. It denied the request for discovery and granted summary judgment in favor of Burlington on grounds of issue preclusion. King filed this appeal, claiming that the district court abused its discretion in denying discovery and erred in holding that her claim was precluded by the arbitration proceedings.


We review the district court's decision to deny King's Rule 56(f) motion for abuse of discretion, Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055-56 (7th Cir. 2000), and its decision to grant summary judgment de novo, Sound of Music Co. v. 3M, 477 F.3d 910, 914 (7th Cir. 2007). We may affirm a grant of summary judgment on any ground that finds support in the record. Wallace v. Greer, 821 F.2d 1274, 1277 (7th Cir. 1987). The district court's jurisdiction was based on diversity (King is a citizen of ...

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