Wilhelm, Randolph J. v. County of Milwaukee

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3466
RANDOLPH J. WILHELM,
Plaintiff-Appellant,
v.
COUNTY OF MILWAUKEE, MARY LOU LINTON,
FRED J. KNOX, THOMAS J. PARKER,
ROBERT W. SCHROEDER, WILLIAM G. TESTDORF,
SUSAN L. BALDWIN, and GREG McKINSTRY,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-028—Aaron E. Goodstein, Magistrate Judge.
____________
ARGUED FEBRUARY 14, 2003—DECIDED APRIL 4, 2003
____________
Before FLAUM, Chief Judge, and DIANE P. WOOD and
EVANS, Circuit Judges.
EVANS, Circuit Judge. Randolph Wilhelm filed this case,
pursuant to 42 U.S.C. § 1983, claiming damages resulting
from the interruption of his employment as a Milwaukee,
Wisconsin, County park worker. The district court granted
the County’s motion for summary judgment on the basis
of claim preclusion.
As a worker in the Milwaukee County Department of
Parks, Recreation and Culture, Wilhelm was subject to a
2 No. 02-3466
drug testing policy. After he tested positive for marijuana,
termination proceedings were brought against him. The
proceedings ended when he entered into a settlement
agreement which said that for a period of 3,120 work hours
he would be subject to dismissal without a hearing for
any violation of the County work rules (which, of course,
included a prohibition of drug use). During the 3,120-hour
period he was again selected for drug testing. On this
occasion he did not provide a urine sample. Under the
work rules, refusal to test is the same as testing positive,
and he was terminated from employment. He later claimed
that he was physically unable to provide the sample
because he was dehydrated.
Wilhelm requested a hearing before the County’s Person-
nel Review Board, which declined the request, relying
on the prior settlement agreement. Wilhelm filed a writ of
certiorari to the Circuit Court for Milwaukee County, which
reversed the PRB decision and required a hearing on the
issue as to whether he had a valid medical excuse for
not providing the sample. The court reasoned that Wilhelm
was denied the opportunity to present reasons why he
was unable to provide the sample or to present evidence
from medical doctors that would validate his excuse. There-
fore, due process was said to mandate a hearing. The
County appealed, and the decision was affirmed by the
Wisconsin Court of Appeals.
At the subsequent PRB hearing, Wilhelm was ordered
reinstated with back pay and benefits. The County peti-
tioned the circuit court for review of the decision and
did not pay the back pay during the time the case was pend-
ing. This time, the court affirmed the judgment and Wil-
helm was paid $81,737.77 in back pay.
Wilhelm next filed a civil action, again in the Circuit
Court for Milwaukee County, seeking a declaration that
he was entitled to interest on the back pay. He also sought
No. 02-3466 3
treble damages and attorney fees. The circuit court granted
judgment for the County.
Wilhelm’s next step was to file the present civil rights
action in federal court. As we said, the district court
dismissed it on claim preclusion grounds, saying primarily
that the first circuit court case precluded the present one.
Wilhelm finds a number of things wrong with that
decision, including that under Wisconsin law he could not
have included a civil rights action in his first case, the
petition for certiorari. He also says that the existence of
the petition was not the basis on which the County sought
summary judgment, so the court was wrong to decide
the case on a basis not presented to it. We review the
decision de novo. Green v. Shalala, 51 F.3d 96 (7th Cir.
1995).
Wilhelm is right that he was not required to bring his
present claims in connection with the petition for certiorari.
In Hanlon v. Town of Milton, 612 N.W.2d 44, 48 (2000), the
Wisconsin Supreme Court said:
Because the issue of monetary damages could not
have been litigated in the Wis. Stat. ch. 68 proceeding,
we conclude that Hanlon’s § 1983 claim could not have
been brought by him within his ch. 68 certiorari review.
Furthermore, claim preclusion does not ordinarily apply
in cases under ch. 68. Hanlon again:
We conclude that the principles underlying the doctrine
of claim preclusion cannot be achieved by joining a
§ 1983 claim with a certiorari proceeding brought pur-
suant to Wis. Stat. ch. 68. Therefore, failing to join
these claims does not bar Hanlon’s present cause
of action.
¶ 21 Wisconsin Stat. ch. 68 certiorari is a limited form
of review, while a claim under § 1983 exists as a
4 No. 02-3466
“uniquely federal remedy” that “is to be accorded a
sweep as broad as its language.”
At 49. So the petition for certiorari, on claim preclusion
grounds, does not bar the present case. Unfortunately for
Wilhelm, he stubs his toe on his second circuit court case
which was a run-of-the-mill civil action for interest, dam-
ages, and attorney fees. While Wilhelm tries to paint it
as limited to an action on a debt, the complaint is not
so narrow.
The issue becomes, then, whether claim preclusion
applies based on the second case. Before we look at this
issue, we first note that the fact that the district court
did not use the second case as the basis for its decision is
no impediment to our considering it. We can affirm a
district court’s decision on any sufficient basis supported
in the record. Vitug v. Multistate Tax Comm’n, 88 F.3d
506 (7th Cir. 1996).
Under 28 U.S.C. § 1738, federal courts must give a
state court judgment the same preclusive effect that it
would receive under state law. Allen v. McCurry, 449 U.S.
90 (1980). The general principle of claim preclusion is
designed to encourage the finality of judgments and prevent
repetitive litigation. In re Radocay’s Estate, 142 N.W.2d
224 (1966). The rule bars relitigation of the same cause of
action between the same parties where the first litigation
resulted in a valid, final judgment on the merits. Juneau
Square Corp. v. First Wis. Nat’l Bank of Milwaukee, 364
N.W.2d 164 (Wis. App. 1985). For claim preclusion to
apply there must be a final judgment on the merits in an
earlier action, an identity of the cause of action in both
suits, and an identity of parties or privies in the two suits.
Shaver v. F.W. Woolworth Co., 840 F.2d 1361 (7th Cir.
1988). It is only the second requirement we must be
concerned with here.
Wisconsin uses the “transactional analysis” of the Re-
statement (Second) of Judgments as a guide in applying
No. 02-3466 5
the rule. All claims arising out of one transaction or one
factual situation are treated as being a part of a single
cause of action, and they must be litigated together:
Under this approach, “the claim extinguished includes
all rights of the plaintiff to remedies against the defen-
dant with respect to all or any part of the transaction,
or series of connected transactions, out of which the
action arose.” Northern States Power, 525 N.W.2d
at 729, quoting Restatement (2d) of Judgments § 24(1)
(1982). The Wisconsin courts focus on facts, not legal
theories, to determine whether an action is precluded.
See Northern States Power, 525 N.W.2d at 729 (“[T]he
number of substantive theories that may be available
to a plaintiff is immaterial—if they all arise from the
same factual underpinnings they must all be brought
in the same action or be barred from future consider-
ation.”).
Froebel v. Meyer, 217 F.3d 928, 934 (7th Cir. 2000).
For claim preclusion to apply, the actual litigation of the
issue is not required. The earlier judgment is conclusive as
to “all matters which were litigated or which might have
been litigated” in that proceeding. Jantzen v. Baker, 388
N.W.2d 660, 662 (Wis. App. 1986) (emphasis in original).
We see no reason that Wilhelm’s present civil rights
action should not have been joined with his second state
court civil suit. State courts are competent to decide
cases brought under § 1983. As the Court said in Nevada
v. Hicks, 533 U.S. 353, 366 (2001), “state courts of ‘general
jurisdiction’ can adjudicate cases invoking federal statutes,
such as § 1983, absent congressional specification to the
contrary.” Here, both the state court case and the present
case involve alleged damages to Wilhelm arising out of
the interruption of his employment with Milwaukee Coun-
ty. To require him to litigate all issues in one forum is
6 No. 02-3466
well within the claim preclusion rules as set out by the
Wisconsin courts.
Accordingly, the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-4-03