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Swanson v. Baker & McKenzie, LLP

United States District Court, N.D. Illinois, Eastern Division

December 14, 2016



          Virginia M. Kendall U.S. District Court Judge.

         On August 5, 2016, pro se Plaintiff Gloria Swanson sued her former employer, Baker & McKenzie, LLP (“Baker”) and Chanel Johnson-Bell, one of its Human Resources (“HR”) managers. Swanson alleges that certain statements made by Baker HR personnel to a reference-checking agency she hired constituted retaliation in violation of Title VII of the Civil Rights Act of 1964, Section 704 and 42 U.S.C. § 1981, and defamation. (Dkt. 1.) Defendants have moved to dismiss, asserting that Plaintiff is collaterally estopped from bringing her claims due to her litigation of a similar suit in 2012, or, in the alternative, has otherwise failed to state a claim. For the following reasons, Defendants' Motion to Dismiss [10] is granted.


         Swanson, an African American, was employed by Baker as a legal assistant between February 1990 and May 1995. (Dkt. 1 ¶ 14.) Swanson left Baker after she was denied a transfer of assignment even though Baker permitted many white secretaries to change assignments. (Dkt. 1 ¶ 35.) Swanson also alleges that she was verbally abused by an attorney during her time at Baker. (Id. at 5 n.1.) To settle her claims of abuse and discrimination against Baker, as part of her departure, Swanson signed a Termination Agreement/Settlement Agreement, which precluded her from filing a U.S. Equal Employment Opportunity Commission (EEOC) complaint for alleged discrimination against Baker. (Id. ¶ 30.)

         Following her departure from Baker, Swanson worked at two other law firms, including one job that lasted 14 years. (Id. at ¶¶ 8, 36.) In March 2011, Swanson again found herself unemployed. (Id.) In 2012, Swanson hired Allison & Taylor, an employment reference-checking firm to contact her former employers to determine why she was not being hired as a legal secretary despite “testing excellently, and interviewing well with 30 years of legal secretarial experience.” (Id. ¶ 6.) On July 18, 2012, Baker Human Resources personnel were contacted by Allison & Taylor to check Swanson's employment history. (Id. ¶ 5.) Baker HR personnel informed the reference-checking agency that they could not locate Swanson's employment records. (Id. ¶ 6.) Baker corrected the error in September and October 2012, by providing Swanson with written confirmation that she had been an employee. (Id. ¶ 5.) Swanson filed an EEOC complaint and then sued Baker and certain HR personnel in October 2012, alleging that their statements to the reference checking firm that they could not locate her personnel history was retaliatory for her 1995 complaints and also constituted defamation (the “2012 Lawsuit”). (Id. ¶¶ 7, 15.) Judge St. Eve dismissed her complaint, finding that her retaliation claim failed because Ms. Swanson failed to allege an adverse employment action and she could not establish a causal link between her 1995 complaint and the alleged retaliatory comments. Swanson v. Baker & McKenzie, LLP, No. 12 C 8290, 2013 WL 1087579, at *3, 7 (N.D. Ill. Mar. 14, 2013), aff'd, 527 F. App'x 572 (7th Cir. 2013). The court found that her defamation claim failed because (1) Swanson had not sufficiently alleged that the statement was false; (2) the statement could be reasonably capable of an innocent construction; and (3) the statement had not been published to any third party. Id. The Seventh Circuit affirmed. Swanson v. Baker & McKenzie, LLP, 527 F. App'x 572, 574 (7th Cir. 2013); (id. ¶ 15-16).

         Following the events that led Swanson to sue Baker in 2012, she eventually found employment at a law firm for four months in 2013 and then was hired as an Executive Assistant to a CEO of a health care recruiting organization, where she was employed until September 2015. (Id. ¶ 8.) Finding herself again unemployed and having difficulties finding employment (despite “top notch” skills and experience), in January 2016, Swanson again hired a reference-checking firm ( to ascertain why she was having difficulty obtaining employment. (Id. ¶ 7.) When contacted by the reference- checking firm, Baker HR personnel again informed the agency that it had no record of Swanson ever working at the firm. (Id. ¶ 18.) Swanson then reached out to Baker regarding the information the firm provided to, and Johnson-Bell, an HR manager, immediately corrected the issue by writing a letter to and provided Swanson with a letter verifying her employment at Baker. (Id. ¶ 19.) Still having difficulty finding employment, in May 2016, Swanson hired International Counterintelligence Service, Inc. (“ICS”), to contact her former employers to determine if she was being “blackballed.” (Id. ¶ 21.) ICS purportedly left three messages with Johnson-Bell but did not receive a call back. (Id. ¶¶ 24-25.) Swanson then called Johnson-Bell and asked why she had not returned ICS's calls. (Id.) Johnson-Bell informed Swanson that she had not received ICS's calls, offered to call them for Swanson, and reminded Swanson that she had previously provided her with a letter confirming her employment at Baker. (Id. ¶ 25.) Without filing an EEOC complaint, Swanson again sued Baker, alleging that Baker's 2016 interactions (or lack thereof) with the reference-checking firms were retaliatory and violated Title VII and Section 1981, in addition to being defamatory.


         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face when the complaint contains factual content that supports a reasonable inference that the defendant is liable for the harm. Id. This requires enough factual content to create a reasonable expectation that discovery will reveal evidence of wrongdoing. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). For purposes of determining whether a complaint states a claim, this Court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in the non-movant's favor. See Yeftich v. Navistar, Inc., 722 F.3d 911, 915 (7th Cir. 2013).

         Pro se pleadings are to be held to less stringent standards than those prepared by counsel. See Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). Thus, the Court has a responsibility to construe these complaints liberally, and give the plaintiffs' allegations “fair and meaningful consideration.” See Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir. 1987) (citation omitted). Pro se litigants, however, “are not exempt from procedural rules.” Jones v. Mem'l Hosp. of South Bend, Inc., 301 Fed.Appx. 548, 548 (7th Cir. 2008).


         I. Collateral Estoppel

         Defendants argue that Plaintiff's claims are collaterally estopped[1] because in regards to the 2012 Lawsuit, “[t]his District has already ruled that Plaintiff cannot state a retaliation claim or a defamation claim against Defendants based on Baker's statement to a reference-checker retained by Plaintiff that Baker was unable to locate Plaintiff's employment records.” (Dkt. 11 at 6.) In response, Plaintiff argues that collateral estoppel does not apply because she is litigating a “‘new' claim of defamation that happens to be reoccurring after previous litigation.” (Dkt. 17 ¶ 9.)

         Issue preclusion or collateral estoppel “bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.'” Coleman v. Donahoe, 667 F.3d 835, 853 (7th Cir. 2012) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). “To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153-54 (1979). “In significant part, preclusion doctrine is premised on an underlying confidence that the result achieved in the initial litigation was substantially correct.” Bravo-Fernandez v. United States, No. 15-537, 2016 WL 6952648, at *4 (U.S. Nov. 29, 2016). This confidence is often warranted when there has been appellate review. Id.

         Collateral estoppel prevents the relitigation of an issue when four conditions are met. First, “[t]the party against whom the issue had been resolved must have had, first, a ‘full and fair opportunity' to litigate the issue in the previous suit.” DeGuelle v. Camilli, 724 F.3d 933, 935 (7th Cir. 2013) (citation omitted). Second, the issue sought to be precluded must be identical to an issue involved in the prior litigation. Gray v. Lacke, 885 F.2d 399, 406 (7th Cir. 1989). Third, “the issue must have been actually litigated and decided on the merits in the prior litigation” and fourth, “the resolution of that issue must have been necessary to the court's judgment.” Id. See In re Catt, 368 F.3d 789, 791-92 (7th Cir. 2004).

         First, “[t]he requirement that a party be given a full and fair opportunity to litigate a claim is satisfied ‘if the parties to the original action disputed the issue and the trier of fact resolved it.'” See, e.g., Trepanier v. City of Blue Island, No. 03-C-7433, 2008 WL 4442623, at *4 (N.D. Ill. Sept. 29, 2008), aff'd, 364 F. App'x 260 (7th Cir. 2010) (citation omitted). “[A] pro se party is given a full and fair opportunity to litigate [her] case when [s]he is afforded the minimum procedural due process requirements.”[2]Id. Swanson does not argue that she was precluded by the district court in the 2012 Lawsuit from having a full and fair opportunity to litigate her claims, nor does she allege that she was deprived of procedural due process. An examination of the docket of the 2012 lawsuit confirms that Swanson had a full and fair opportunity to litigate the issues in the previous suit. Her initial suit was dismissed ...

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