Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Joan H. Lefkow Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 3533 DATE 11/1/2012

CASE

TITLE

McGraw vs. City of Chicago

DOCKET ENTRY TEXT

Plaintiff’s application for leave to proceed in forma pauperis (#4) is denied. Plaintiff’s motion for

appointment of counsel (#5) is denied. Defendant’s motion to dismiss (#16) is granted. All federal claims

are dismissed with prejudice. The claim for intentional infliction of emotional distress is dismissed for lack

of jurisdiction. The case is terminated.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Zachary McGraw, pro se, filed this multi-count employment discrimination case alleging that the City of

Chicago discriminated against him based on political affiliation, age, disability, and race. He also alleges

that the City retaliated against him because he exercised protected rights and, under Illinois common law, that

the City intentionally inflicted emotional distress upon him. The complaint alleges that McGraw was at one

time employed by the City, is no longer employed, and was discriminated against on or about May 5, 2011. 

McGraw filed a charge with the Illinois Human Rights Commission (IHRC) on February 1, 2012; a notice of

right to sue issued April 16, 2012; this case was timely filed within 90 days of the notice, on May 9, 2012.

The City has moved to dismiss. It cites to three other lawsuits McGraw has filed concerning his application

for re-employment with the City.1 See Case Nos. 07 CV 414, 07 CV 5293, and 09 CV 5043. In Case No. 07

CV 414, McGraw complained that he applied for a painter position in August 2005 and June of 2006, was not

hired, but the City had hired 56 painters, from which number he asked the court to infer that the failure to

hire him was based on retaliation for a previous race discrimination case (or charge) he had filed. Eventually,

McGraw moved for voluntary dismissal and the case was dismissed on May 29, 2008. In Case No. 07 CV

5293, McGraw alleged race discrimination on June 4, 1997 and November 20, 1998, when he was denied

employment by the City. This case was dismissed as time-barred and because it was an improper refiling of

Case No. 01-CV-9575. See Dkt. No. 6. In Case No. 09 CV 5043, McGraw alleged that he was discriminated

against on June 26, 2007 when he was not hired as a painter. His narrative in the complaint recited that he

had applied on seven different occasions from 1997 through 2007 and was not hired, even though the City

had hired 81 to100 painters. This case was dismissed on a variety of grounds, including untimeliness, failure

to exhaust administrative remedies, preemption, and frivolousness. See Dkt. Nos. 33, 56, 60.

12C3533 McGraw vs. City of Chicago Page 1 of 2
STATEMENT

1. The City also refers to Case No. 01 CV 9575. This case, however, related to denial of promotion to

painter from custodian during a period before the City terminated his employment altogether. The docket

indicates that the case was settled.

2. In paragraph 12 of his response to the motion to dismiss, McGraw concedes that he did not apply in

2011. (Response, Dkt. No. 19 ¶ 12.) Indeed, McGraw’s responses (and pleadings) in each of his cases

contain a lengthy narrative of the reasons he believes motivated the City’s actions against him. There are

no new facts in the pending complaint that would suggest a viable basis for a First Amendment or other

claim that McGraw has not previously and repeatedly iterated. 

The case before this court is yet another effort by McGraw to relitigate his inability to obtain the painter

position he wants. Although each time he applies for a position, he has the potential to claim discrimination

for that discrete act of non-hire, the complaint does not allege any conduct of the City occurring on May 5,

2011 that would suggest that it might have violated his rights on that date as he alleges. (Dkt. No. 1,

Complaint, ¶ 6.)2

 Moreover, the charge McGraw filed with the IHRC, which is the basis on which he can

proceed with this case, reveals that McGraw’s claim of discrimination stems from an application he made on

June 26, 2007. This application was the subject of Case No. 09 CV 5043. 

In short, the records of this court make plain that plaintiff is attempting to relitigate a case already decided

against him, a path foreclosed by the doctrine of res judicata, sometimes called claim preclusion. See Golden

v. Barenborg, 53 F.3d 866, 869 (7th Cir. 1995) (“For res judicata to apply in federal court three requirements

must be met: (1) an identity of the causes of actions; (2) an identity of the parties or their privies; and (3) a

final judgment on the merits [in the previously filed case].”). All of the requirements for the application of

the doctrine apply here, and for this reason, this case must be dismissed.

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