Mark Manicki v. BRIAN ZEILMANN and CITY OF OTTAWA

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1649
M ARK M ANICKI ,
Plaintiff-Appellant,
v.
B RIAN Z EILMANN and C ITY OF O TTAWA ,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6374—Charles P. Kocoras, Chief Judge.
____________
A RGUED D ECEMBER 2, 2005—D ECIDED A PRIL 11, 2006
____________
Before BAUER , P OSNER , and M ANION , Circuit Judges.
P OSNER , Circuit Judge. Mark Manicki brought a federal
civil rights suit (42 U.S.C. § 1983) that the district judge
dismissed as barred by res judicata, precipitating this
appeal. Manicki was in his one-year probationary period
as a new police officer when he witnessed a fight between
two other officers. In the ensuing criminal investigation
he told investigators that one of the officers had started
the fight. The police chief, defendant Zeilmann, wanted
Manicki (or so the latter contends) to tell the investigators
that both officers had been equally at fault, in the hope

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2 No. 05-1649
that this would ward off any criminal prosecution of the
officer, a favorite of Zeilmann’s, whom Manicki had
identified as the instigator. When Manicki refused to alter
his statement, Zeilmann wrote a letter to the city’s board
of fire and police commissioners stating that Manicki
had failed to perform adequately during his probationary
period and should be fired—and the board fired him. In this
suit, which is against both Zeilmann and the city, Manicki
contends that Zeilmann’s letter retaliating against him for
telling the investigators the truth violated the First Amend-
ment.
The res judicata issue arose as follows. The board had
conducted no hearing before firing Manicki; it had
acted solely on the basis of Zeilmann’s letter. Manicki sued
the board and Zeilmann in an Illinois state court, com-
plaining that he had been fired on the basis of Zeilmann’s
letter, which had, the suit charged, been “made in retaliation
for [Manicki’s] acting as a witness in a criminal matter
against another police officer and could constitute the
criminal offense of Harassment of a Witness . . . . [The board
had] afforded no due process prior to [Manicki’s] dismissal”
and its decision to dismiss him had been “against the
manifest weight of the evidence,” “arbitrary and capri-
cious,” and “legally erroneous.” Manicki acknowledged that
a probationary employee ordinarily lacks the kind of
interest that entitles him to a predeprivation hearing, but
contended that the collective bargaining agreement between
the Ottawa police department and the department’s em-
ployees created such an interest. The state court disagreed
and entered judgment in favor of the defendants. That is the
judgment the district court ruled bars Manicki’s federal suit.
In Krecek v. Board of Police Commissioners, 646 N.E.2d 1314,
1317 (Ill. App. 1995), a case nearly identical to this one,
the court held that a judgment determining that the plaintiff

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No. 05-1649 3
didn’t have a right to a hearing was not res judicata in her
subsequent suit, which charged that her termination was
retaliatory, as she would have tried to show had she been
given a hearing. But Krecek was decided at a time when
many Illinois courts applied a “same evidence” test for res
judicata. Later the Supreme Court of Illinois made clear that
this was not the right test, that a plaintiff is not permitted to
slice up his claim into little pieces and make each the subject
of a separate lawsuit based on slightly different evidence.
River Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 893-
94 (Ill. 1998); Durgins v. City of East St. Louis, 272 F.3d 841,
844 (7th Cir. 2001); see also Licari v. City of Chicago, 298 F.3d
664, 667 (7th Cir. 2002) (Illinois law).
But what exactly is a “claim” (or, in an older terminol-
ogy, a “cause of action”)? River Park adopted the prevail-
ing definition: it is the “transaction” or (equivalently) the
“operative facts” that give rise to the plaintiff’s right to
obtain legal relief, rather than the particular legal cate-
gory or theory that shows that the transaction really does
entitle him to a legal remedy. There might after all be
numerous categories or theories that fit the facts (breach of
contract, common law tort, violation of federal civil
rights law, etc.), and they should be joined in a single
suit rather than parceled out among a set of different
suits based on the same facts so that if the plaintiff strikes
out on one theory he can try again on another. Such a way
of proceeding would impose gratuitous burdens on defen-
dants and on the courts.
But terms like “transaction” and “operative facts” are
not self-evident; indeed, it is quite unclear what “operative”
is supposed to mean in this popular formulation. Language
has its limits, and courts are often better at producing
sensible results than at devising helpful verbal formulas. In

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4 No. 05-1649
Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223, 226
(7th Cir. 1993), we thought it a useful clarification to
“suggest that two claims are one for purposes of res judicata
if they are based on the same, or nearly the same, factual
allegations.” This directs attention to the degree of factual
overlap between assertedly different claims and hence the
appropriateness of trying them together rather than sepa-
rately.
In the spirit of this approach Manicki argues that there are
two separate clusters of facts in this case, the first being the
police board’s denying him a predeprivation hearing, the
subject of the state court suit, and the second (though it
came first in time) being the letter by Zeilmann to the board
which precipitated Manicki’s dismissal and hence the filing
of the first suit. But they are not really separate, except in
not being simultaneous; together they constitute the circum-
stances of Manicki’s dismissal and “form a convenient trial
unit.” Mpoyo v. Litton Electro-Optical Systems, 430 F.3d 985,
987 (9th Cir. 2005).
Manicki’s dismissal was the collaborative product of
Zeilmann and the board. Zeilmann writes the board a letter
recommending that it dismiss Manicki, and the board,
without bothering to get a response from Manicki, fires him.
There were, if Manicki was correct, two constitu-
tional violations—a procedural violation by the board in
denying him a predeprivation hearing, and a substantive
violation by Zeilmann in maneuvering to get Manicki
fired in retaliation for refusing to alter a truthful state-
ment to investigators. But the two violations are based
on the same episode, namely the dismissal of Manicki on the
basis of Zeilmann’s letter, and to make each violation the
subject of a separate trial would, because of the extent of the
factual overlap, increase the expense of litigation without
compensating benefit. In the first case, where Manicki’s goal

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No. 05-1649 5
was a hearing before the board, he wanted to present
evidence of the retaliatory motive for, and consequent lack
of credibility of, Zeilmann’s letter to the board. In the
second case, which was based squarely on Zeilmann’s letter,
he wanted to show that it was indeed the letter that had
precipitated Manicki’s dismissal by the board. Moreover,
the ultimate relief sought in both cases included reinstate-
ment, and the facts bearing on the appropriateness of that
remedy (if Manicki succeeded in establishing liability)
would be the same.
This is not to say that the test for res judicata is a genetic
one based, that is, on the two suits’ having a common
source—Zeilmann’s anger at Manicki’s refusal to alter his
account of the fight. Claims that have too little factual
overlap to warrant being forced into a single suit (that is,
to warrant being deemed a single “claim” for purposes of
res judicata) can nevertheless have the same origin. When
an employee complains about discrimination and the
employer fires him in retaliation for complaining, the
employee’s discrimination and retaliation claims can
sometimes be litigated separately even though both have
a common origin in the discrimination against the em-
ployee. Herrmann v. Cencom Cable Associates, Inc., supra,
999 F.2d at 227; Legnani v. Alitalia Linee Aeree Italiane,
S.P.A., 400 F.3d 139, 141 (2d Cir. 2005) (per curiam); Abels v.
Renfro Corp., 436 S.E.2d 822, 827-28 (N.C. 1993). There is
bound to be evidentiary overlap, but it may be slight,
because most discriminating employers do not also retaliate
against complaining employees and an employer may (and
in fact is likely to) retaliate against an employee who files a
groundless complaint. When, however, the same action is
charged as both discrimination and retaliation, the eviden-
tiary overlap is so extensive that the plaintiff is forbidden to
make each the subject of a separate suit. E.g., Garcia v.

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6 No. 05-1649
Village of Mt. Prospect, 360 F.3d 630, 637-38 (7th Cir. 2004);
Durgins v. City of East St. Louis, supra, 272 F.3d at 843
(Illinois law); Davis v. Dallas Area Rapid Transit, 383 F.3d 309,
314 (5th Cir. 2004); Nwosun v. General Mills Restaurants, Inc.,
124 F.3d 1255, 1256-58 (10th Cir. 1997).
Here too, the two claims—due process and retalia-
tion—are tightly bound together, because Manicki wanted a
due process hearing so that he could prove retaliation.
Imagine if instead Zeilmann had shot Manicki or tossed a
Molotov cocktail into his house. No reference to that
conduct would be needed to establish that Manicki had
been denied a predeprivation hearing to which he was
entitled.
Suppose Manicki had won his first case and thus had
succeeded in getting a hearing before the board, but the
board after the hearing again ruled against him. He
could then, if he is right that the judgment in the state
court suit was not res judicata, bring a second suit (the
suit before us) against Zeilmann complaining about the
letter that led to his dismissal (though depending on the
ground of the board’s action, Zeilmann might have a
defense of collateral estoppel). In contrast, if Manicki
must join both his legal theories in one suit, then if the court
finds that he was dismissed in violation of his constitutional
rights it can avoid having to resolve the issue of his right to
a hearing; the court would order him reinstated and the
issue of a hearing would be moot.
All else aside, Manicki’s joining Zeilmann as a defendant
in the first suit was a fatal step, though this requires
some explaining. Even if a plaintiff’s right to relief arises
from what is realistically viewed as a single episode, if it is a
right against multiple parties—joint tortfeasors, if the right
arises under tort law—he needn’t join them in one suit,
Airtite v. DPR Ltd. Partnership, 638 N.E.2d 241, 247 (Ill. App.

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No. 05-1649 7
1994); Northern Assurance Co. of America v. Square D Co., 201
F.3d 84, 88-89 (2d Cir. 2000), unless there is privity among
those parties, Lawlor v. National Screen Service Corp., 349 U.S.
322, 330 (1955); In re Marriage of Mesecher, 650 N.E.2d 294,
296-97 (Ill. App. 1995), for in that event separate suits
against them are treated as the equivalent of separate suits
against the same party. “Privity” in this context means that
because the parties have by virtue of contract or otherwise
identical interests, a claim or defense by one is equivalent to
a claim or defense by all. Diversified Financial Systems, Inc. v.
Boyd, 678 N.E.2d 308, 312 (Ill. App. 1997); In re Marriage of
Mesecher, supra, 650 N.E.2d at 296-97; Garcia v. Village of Mt.
Prospect, supra, 360 F.3d at 636 (Illinois law). There is no
privity between Zeilmann and the board. Both are agents of
the city, but their interests diverge. Manicki charges them
with different legal violations, and so one or the other
defendant could win though the other lost.
Assuming that Zeilmann and the board acted wrongfully,
as Manicki charges, they were in effect joint tortfeasors. It
was their combined action that did in Manicki. Had
Zeilmann not written his letter, the board would not
have fired Manicki, and if the board had granted him a
hearing it might well have discovered Zeilmann’s retalia-
tory motive and, again, not fired Manicki. But Manicki sued
both Zeilmann and the board in the same case, and you
cannot sue all your joint tortfeasors in the same case and
then when you lose sue one of them separately. That would
be taking two bites at the same apple. Frier v. City
of Vandalia, 770 F.2d 699, 702 (7th Cir. 1985) (Illinois law);
Lane v. Peterson, 899 F.2d 737, 743 (8th Cir. 1990). And if
the second suit against Zeilmann is thus barred, the suit
cannot be saved by the fact that the city is also named as
a defendant. The city’s liability is derivative from
Zeilmann’s, the contention being that either Zeilmann was a

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8 No. 05-1649
policymaker whose actions thus bound the city or that the
city ratified his persecution of Manicki. Killinger v. Johnson,
389 F.3d 765, 771-72 (7th Cir. 2004).
Manicki argues that the defendants are precluded from
invoking res judicata because they failed to warn him, when
they learned that he planned to file a second suit, that such
a suit would be barred by res judicata. He relies on the rule
that “the failure of the defendant to object to the splitting of
the plaintiff’s claim is effective as an acquiescence in the
splitting of the claim.” Thorleif Larsen & Son, Inc. v. PPG
Industries, Inc., 532 N.E.2d 423, 427 (Ill. App. 1988) (quoting
Restatement (Second) of Judgments § 26 comment a (1982)); see
also Saxon Mortgage, Inc. v. United Financial Mortgage Corp.,
728 N.E.2d 537, 545-47 (Ill. App. 2000); Airtite v. DPR Ltd.
Partnership, supra, 638 N.E.2d at 244. This rule of Illinois law
does not govern the purely procedural question of what
issues must be raised, and when, in a federal lawsuit. In any
event, the cited cases are ones in which, by failing to raise
the defense of res judicata in timely fashion, the defendant
wasted the time of the plaintiff and the court. There is no
duty to warn a prospective adversary of the defenses you
will interpose if he carries out his threat to sue you.
A FFIRMED .

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No. 05-1649 9
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-11-06

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