setting god save the united states and this honorable court good morning everyone our st case for argument this morning is austin where against illinois department of corrections number  represent mr ware in this matter the underlying issue for the just report was whether the claim filed as a of specifically of whether race judicata applies where a claim is dismissed as a class claimant and whether individual claim can survive race judicata filed subsequently but is it not true mr kasson that your st or the st claim was brought individually and on behalf of a class i've actually never heard of this before because in order to be a class representative you have to be suing both individually and as a member of the class your honor that is accurate if it was it was raised as a as an individual  claim those claims however were limited to a a it really is due process claimed they were they were process claims related to how the class was being treated and disciplined the subsequent action was based on an individual's rights under title seven for discrimination based on race and age can you explain to me though why it would not have been possible for mr ware to have raised those individual claims in the st suit because as you know claim preclusion covers not just what was raised but what could have been really true your honor and in the there's an actually an analogous case that we've we've cited to and that is although distinguished by the defendants  in applebee's in their brief the crowd her matter we believe is it is stands for that principle that when it that the distinguishing issue  that you've raised is whether that those claims ought to have been brought and what they are what can the cases that we've cited are instances where it would not be  advisable to bring those kind of claims because they were so different in their their scope and nature and getting an argument that it didn't arrive that at the same time a nucleus of operative fact which it has to do crowther is is understandable but misguided because the principle was that those there was a central core of facts are significantly different just trying in perceiving the case under a class theory where the individuals involved were a whole different set of individuals that had an interest in the case of the union that the union in this particular case was involved in the class matter with knots and disciplinary matter the individual matter which was where to those would be very difficult to present to that the court as a single set of facts that we could actually get some some resolution on it was our feeling that the the underlying facts on the on the class matter would be fairly expansive and go into the process in which discipline was meted out by the department across the entire state in mr where's situation here as a single individual in who works within a single this church of the state and within the agency those are very particular arised sets of facts and would be drawn from individuals that were specific to a location specific supervisors where the class action was expansive it would expand be throughout the entire idea see from district one to just rip five covering the entire state distinction calls for the the district court's decision to be overturned by by this court of the so do you think i think they're i'm sorry do you think it's fair to characterize where one as simply being more of an umbrella claim where we are two is a subset because where one does talk about targeting harassing punishing based on race based on socio based on speech i could understand if we had a different set of rules but i'm concerned that if we're to is just a subset it really isn't separate enough the you've you've raised a good point you're right at this so that the the issue that we have to grapple with is whether that subset is is fairly litigated separately from the the larger set of facts the the time frame is the is really the issue that the what we've got a ledge in the complaint however is that the the discipline in where to was very specific and uncertain dates where the substance of the claim and where one was that process claimed that applied to all districts in all members of the class it's i think the inappropriate question is whether it's fair to limit a individual title seven claim for if i'm wrong i thought that the that the june two thousand and seventeen incidents and where to fall within a time period where one covered it's not i mean i think you might have a different case if where one covered raised in this citing cases anyway is when that where there is an overlap crowder is one of those were so those cases actually overlapped in time and whether that's a determining factor and i of complaints also alleged that his retaliated against mr ware for associating with his local union serving on its executive board and for speaking out about mismanagement in the department also alleged that the discipline and harassment was based on race again the distinction that mr to sun tries to draw today that where she was a title seven claim it's not where one also involves allegations of discrimination based on  race specifically like to point your honour's to page six of the where one complaint from those allegations of racism nation and moreover all these terms all these alleged events occurred during the same time period as judge was pointed also it's important to point out that the where one complaint was actually filed in august two thousand eight hundred and seven months after the last disciplinary action that mr ware complains of was imposed so anything that was raised and where to could have been included in there one for and therefore they are both the same cause of action for purposes of mr couch also the distinction between where one being a class action and where to being an individual claim doesn't justify reversal of the district court's dismissal as judgment pointed out it was brought up in the caption explicitly individually on and on behalf of similarly situated employees and as a class representative mr ware necessarily had to bring his individual claims as the framework for the class members claims so you don't think it's possible to bring an action exclusively on behalf of a  class that it somehow embedded in rule twenty three dollars is the need to bring it both individually and on behalf of the class there might be a suit situation in which that's the case this is certainly not it however i mean the complete the where one complaint alleges that ware suffered discrimination harassment unfair process and the disciplinary proceedings so if there's a possibility to bring a claim soley as a representative who didn't suffer a common injury with  defendants and where one specifically defendants affiliated with asked me and the lack of critique between those defendants and the department defendants makes those parties different for purposes of race judicata but defendants were parties to the original action they're entitled to the clues of the fact of the judgement and where one whether or not there were other defendants in that action as well and they did not need to establish pretty i'd also like to address claims for damages that's not the case here again mr ware was an active participant in both lawsuits on his own behalf i'd like to follow up on a question that just would asked surely there must be some cases and you're saying this isn't one but of course we have to think about the effect of this case on others in which and class representative may have individual claims that wouldn't satisfy the requirements of twenty three but yet still may arise out of the same core of operative facts for purposes of preclusion what would be the proper procedural route by which such a plaintiff would proceed what he an abundance of caution assert the class claims and the individual ones and then see severance mean wit what was your view of how that happened i think that's the proper procedure your honor if you get something that would be dealt with at the certification stage the district court can certify certain claims and not others and you know handle those cases separately claims and other claims that might not be common with the class should bring them all and then deal with that issue at sort of occasion it's also important point out that where one never approached certification here so effectively where one was an individual claim  issues that could not have been raised they can only be raised when they become right after the issuance of the right to sue letter from the so you so they weren't ready to then we were faced with a if we bring it as suggested then it's right for just miso because we have not received a right to sue letter so we'd be back where we started so it in certain cases and and i believe that this is one of those that we will hear an individual claims under title seven in particular that those individual claims are not claimed precluded up i have nothing further other than we believe that the that the district court was in error in its judgment and we asked that this court reverse judge lee's decision to vacate to dismiss based on race judicata you know all right well thank you very much then thanks to both of you will take the