Brown v. Illinois Department of Public Aid , 132 F. App'x 51 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2005*
Decided May 13, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2405
Appeal from the United
EUGENE W. BROWN, JR., States District Court for the
Plaintiff-Appellant, Northern District of Illinois,
v. Eastern Division.
ILLINOIS DEPARTMENT OF PUBLIC AID, et al., No. 02 C 7781
Defendants-Appellees. Elaine E. Bucklo, Judge.
Order
Eugene Brown, who used to work for the Illinois Department of Public Aid, con-
tends in this suit that the Department harassed and fired him because of his sex.
The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6). Although
this step may have been irregular, see Swierkiewicz v. Sorema N.A., 534 U.S. 506(2002), Brown does not complain about the use of Rule 12(b)(6) as opposed to Rule
56. Moreover, two obstacles should have prevented the district court from reaching
the merits at all.
This is Brown’s second suit concerning the same events. The first was filed late
in 2001, within 90 days of the EEOC’s right-to-sue letter, and was dismissed in
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).
No. 04-2405 Page 2
May 2002 because Brown had failed to name the right parties. Instead of suing his
employer (the Department), which is the proper defendant in litigation under Title
VII of the Civil Rights Act of 1964, Brown had named the State of Illinois and sev-
eral public officials. His only claim was based on Title VII, so although the public
officials would have been appropriate defendants in a claim under 42 U.S.C. §1983they were not the proper parties to the claim that Brown actually pressed. He did
not appeal. Instead he filed a new suit in October 2002 against the same officials
plus the Department; this time he relied on §1983 as well as Title VII. Two months
later the district court dismissed the suit for want of prosecution after Brown failed
to pay the filing fee. Again he did not appeal. In December 2003 Brown paid the fee
and asked the court to reinstate the suit, which it did. At this point the defendants
moved to dismiss under Rule 12(b)(6). Brown did not respond to the motion, which
the judge eventually granted. This time he appealed.
The judge concluded that the claim under Title VII was untimely (and barred by
claim preclusion to boot, given the dismissal of Brown’s first suit), and that the
§1983 theory failed to state a claim on the merits because the complaint does not
“allege facts indicating that he was treated differently.” His retaliation claim met
the same fate. But, as Swierkiewicz holds, complaints need not allege facts; they
make claims for relief. Disparate treatment on account of sex, and retaliation for
speaking out against disparate treatment, are recognized legal theories. The dis-
trict court’s handling of time considerations and claim preclusion (res judicata) also
are problematic; these are affirmative defenses, which complaints need not antici-
pate and plead around. See, e.g., United States Gypsum Co. v. Indiana Gas Co., 350
F.3d 623 (7th Cir. 2003). But, as we have said, Brown does not contend that the
district court jumped the gun by using Rule 12(b)(6) rather than Rule 56. He com-
plains only about the substance of the adverse decision. With all doubts about the
propriety of acting under Rule 12(b)(6) out of the picture, we affirm the judgment
on two procedural grounds of our own.
First, the dismissal of the 2001 action is preclusive on all theories that Brown
could have presented at the time, not just the Title VII claims that he did present.
Litigants may not multiply their suits by sequential presentation of legal theories
arising from a common nucleus of operative facts. See, e.g., Herrmann v. Cencom
Cable Associates, Inc., 999 F.2d 223 (7th Cir. 1993). If Brown had sued only the
State in 2001, then later litigation against the officials would not have been fore-
closed, for identity of litigants is one ingredient of claim preclusion. But he sued the
state officials personally in 2001 and had to present all legal theories at once.
Second, the current suit, which began in October 2002, ended in December 2002
when Brown failed to pay the filing fees or present an application for leave to pro-
ceed in forma pauperis. Once an action has been dismissed, and the time for appeal
has expired, it may be reinstated only under the terms of Fed. R. Civ. P. 60(b). Yet
Brown does not contend that a belated decision to pay the filing fee justifies rein-
statement under any subsection of that rule, nor did the district judge cite any le-
gal authority for reinstating the suit. It ended in December 2002, and with preju-
dice under the terms of Fed. R. Civ. P. 41(b). The defendants were entitled to peace
at that point. So we need not decide whether the district judge was right on the
merits, or whether (as Brown insists) the Attorney General of Illinois should have
No. 04-2405 Page 3
been disqualified as the defendants’ representative; this litigation has been over for
more than two years and cannot be revived.
AFFIRMED