Sanders v. Illinois Department of Central Management Services , 593 F. App'x 575 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 23, 2015 *
Decided February 27, 2015
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 14-1693
MICHAEL A. SANDERS, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 12-3358
ILLINOIS DEPARTMENT OF Richard Mills,
CENTRAL MANAGEMENT SERVICES, Judge.
Defendant-Appellee.
ORDER
Michael Sanders has litigated frequently against his Illinois state employers. In
this latest round, he appeals from the dismissal of his employment-retaliation complaint
under the Americans with Disabilities Act, see 42 U.S.C. §§ 12101– 12213, against the
Illinois Department of Central Management Services. We conclude that Sanders waived
his appellate arguments, and, in any event, the complaint is claim-precluded in part and
the remainder does not state a claim for relief. Thus, we affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-1693 Page 2
For this appeal we assume the truth of the facts alleged in Sanders’s complaint as
well as any consistent elaboration of those facts in his appellate brief. See Wigod v. Wells
Fargo Bank, N.A., 673 F.3d 547, 555 (7th Cir. 2012). The Department hired Sanders as a
data-processing technician in 2005, but soon placed him on paid administrative leave
after he said he was “going to get” his supervisor. While still on leave two years later, in
2007, the Department fired him for refusing to participate in psychiatric evaluations to
determine whether he was fit for work. Sanders appealed the discharge and persuaded
the Illinois Civil Service Commission that under state law the Department lacked “good
cause” to fire him. Affirming that ruling, a state court ordered him reinstated.
After his victory in state court, the Department told Sanders to report back to
work on March 2, 2009, but his return was soon delayed. A week before his return in
March, Sanders called the Department to ask about his new worksite. During the call, he
said that there would “probably be fireworks” when he returned. Interpreting the call as
a bomb threat, the Department placed Sanders on paid administrative leave the next day
and reported the threat to the police. The police cleared the worksite but eventually
decided that no real threat had occurred. Sanders believes that the Department
deliberately misinterpreted his “fireworks” warning to retaliate against him for his
state-court victory. According to him, before that victory Department employees had
been discussing ways that they could get Sanders fired if he won that case.
Sanders finally reported to work in June 2009—his first time back since he was
placed on paid administrative leave in September 2005— but he soon faced new
problems. On the day that he returned, the Department initiated disciplinary
proceedings against him, which led to a three-day suspension. The next week he was
docked an additional day’s pay. Sanders also learned that the Department had not
granted him paid sick, personal, and vacation days that were supposed to have been
accumulating while he was on paid administrative leave.
After returning to work, Sanders began more litigation against the Department. In
August 2009, Sanders sued it in federal court under the Americans with Disabilities Act
for its conduct during his leave—he contested its decision to require him to take a
psychiatric exam in 2007. A jury eventually found for the Department, and we affirmed.
Sanders v. Ill. Dep’t of Cent. Mgmt. Servs., 530 F. App’x 593 (7th Cir. 2013). Then, in October
2009, Sanders filed a charge of discrimination with the Illinois Department of Human
Rights, asserting the claims that he raises here: After he returned from leave, the
Department allegedly retaliated against him for his state-court victory by falsely
accusing him of making a bomb threat, wrongly suspending him for three days, and
No. 14-1693 Page 3
incorrectly docking his pay for one day. He adds that, during his leave, the Department
had also improperly withheld benefits that had accrued then. After pursuing his
administrative remedies, Sanders brought this suit, reiterating his claims that the
Department violated the ADA by retaliating against him for his state-court success.
The Department moved to dismiss the complaint, and the district court granted
its motion. The court concluded that, because Sanders could have raised his dispute over
the withheld benefits in his first federal lawsuit, that claim is precluded. The court also
ruled that Sanders failed to state a claim that, by interpreting the “fireworks” comment
as a bomb threat, suspending him for three days, and docking his pay for one day, the
Department violated the anti-retaliation provisions of the ADA.
On appeal Sanders contests the district court’s ruling that claim preclusion bars
his claim that the Department withheld benefits during his leave in order to retaliate for
his success in state court. Although the district court used the wrong legal test (it should
have applied federal, not Illinois, law of preclusion, see Cannon v. Burge, 752 F.3d 1079,
1101 (7th Cir. 2014), because the first suit was federal) the conclusion is the same under
the correct analysis. Of the three elements of claim preclusion—(1) identity of parties;
(2) identity of claims; and (3) final judgment on the merits in the first suit, Adams v. City
of Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014)—only the second is at issue here. Sanders
contends that he could not have brought in his first federal suit his current claim that the
Department wrongly withheld benefits while on leave; he asserts that he did not learn
about the withholding until his return in 2009. But he did not file his first lawsuit until
after he had returned from leave in August 2009; thus he did know about the claim when
he first sued. And both his claim about the withheld benefits and his earlier federal suit
concern the Department’s actions during his leave. So he could and should have
included his current claim in his first federal case. True, the defendants might have
asserted as an affirmative defense that Sanders needed to present his current claim first
to the EEOC. But rather than split claims about the Department’s actions during his
leave into two suits, Sanders could have asked the district court to stay the first suit until
he received a right-to-sue letter from the EEOC. See Palka v. City of Chicago, 662 F.3d 428,
438 (7th Cir. 2011); Czarniecki v. City of Chicago, 633 F.3d 545, 550 (7th Cir. 2011); Herrmann
v. Cencom Cable Assocs., Inc., 999 F.2d 223, 225 (7th Cir. 1993).
Sanders’ withheld-benefits claim also founders for the same reason that his
remaining appellate claims—contesting the district court’s conclusion that his complaint
fails to state a claim for relief—also fail: Sanders forfeited his arguments because he did
not contest in the district court the Department’s motion to dismiss. Sanders did submit
No. 14-1693 Page 4
a filing that opposed the Department’s motion to dismiss, though he titled it a “request
for a pretrial hearing.” And we look at the substance in his filings in the district court
rather than their captions, especially because Sanders is proceeding pro se.
See, e.g., Castro v. United States, 540 U.S. 375, 381–82 (2003); United States v. Lloyd, 398 F.3d
978, 979 (7th Cir. 2005); Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002). The problem
for Sanders is that he developed no arguments in that filing, and he cannot do so now for
the first time. See Jarrard v. CDI Telecomm., Inc., 408 F.3d 905, 916 (7th Cir. 2005).
But even if Sanders had not waived his appellate arguments, we would still
conclude that Sanders fails to state a retaliation claim under the ADA regarding the
bomb-threat accusation, three-day suspension, and docked pay. To state a claim for
retaliation, Sanders was required to allege that the Department subjected him to an
adverse employment action because he engaged in protected activity. See Carlson v. CSX
Trans., Inc., 758 F.3d 819, 828 (7th Cir. 2014); Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014, 1028–29 (7th Cir. 2013). Protected activity occurs when a person “has opposed any
act or practice” that the ADA prohibits or “made a charge” or “participated” in an ADA
case. 42 U.S.C. § 12203; Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1117 (7th Cir.
2001); Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014).
Sanders has not asserted that the Department took these actions against him
because he invoked his rights under the ADA. To the contrary, he contends that the
Department took these actions because he protested in state court the Department’s
decision to fire him 2007. But his state-court protest, as we have previously observed,
raised a claim that the Department violated a state administrative regulation requiring
good cause before discharge. See Sanders v. Ill. Dep’t of Healthcare and Family Servs., 2014
WL 6439686, at *2 (7th Cir. Nov. 18, 2014); Sanders, 530 F. App’x at 594. And Sanders has
not told us in any of his filings in this court and the district court that he raised any other
claims. Because Sanders has never alleged that in the state proceedings he protested
discrimination, that litigation was not ADA-protected activity. See Kodl v. Bd. of Educ. Sch.
Dist. 45, Villa Park, 490 F.3d 558, 562–63 (7th Cir. 2007) (concluding that employee’s
grievances to union, when unrelated to discrimination, are not protected activity);
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998)
(emphasizing that complaints serving as basis for retaliation claim—regardless of form
or forum—must protest unlawful discrimination). Thus, the Department’s alleged
response to the state-court victory does not violate the ADA’s anti-retaliation
protections.
Accordingly, we AFFIRM the district court’s judgment.