Hon. David R. Herndon, Chief Judge of the Southern 

District of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2768

HARRIETT ELLIS, et al.,

Plaintiff-Appellants,

v.

CCA OF TENNESSEE LLC, doing business as 

CORRECTIONS CORPORATION OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:08-cv-254—Sarah Evans Barker, Judge.

ARGUED JANUARY 10, 2011—DECIDED JUNE 9, 2011

Before FLAUM and WILLIAMS, Circuit Judges, and

HERNDON, District Judge.

FLAUM, Circuit Judge. The plaintiffs in this case are

former nurses who worked in the health care unit of a
2 No. 10-2768

privately run jail. They maintain that their employer,

defendant CCA of Tennessee LLC (“CCA”), subjected

them to racial discrimination and a hostile work environment, in violation of Title VII of the Civil Rights Act of

1964 and 42 U.S.C. § 1981. They also allege that their

employment relationship ended when CCA constructively terminated their employment for complaining

about problems at the jail, in violation of a state whistleblower law. The district court granted CCA’s motion

for summary judgment. We affirm.

I. Background

The plaintiffs are Harriett Ellis, Patricia Forrest,

Shavon Jones, and Delores McNeil. All of the plaintiffs are

African-American, and they all worked as nurses at a

medium-security correctional facility known as Marion

County Jail II. Four more plaintiff-nurses below did not

appeal from the district court’s summary judgment

order, and so we omit them from our discussion. (Would

that plaintiffs had done the same. Instead, their brief

regularly refers to all of the nurses collectively, despite

the individual nature of their legal claims and despite

the fact that half their number have dropped out of the

suit.) The jail where plaintiffs worked is managed and

operated by defendant CCA, pursuant to a contract

between it and the Marion County Sheriff. To staff the

jail’s medical unit, CCA employs a doctor, psychologists,

and nurses. The staff operates under the supervision of

a health services administrator.

During their tenure with CCA, plaintiffs maintain that

they endured several incidents of race-based discrimina-
No. 10-2768 3

tion and were subjected to a hostile work environment.

The first incident is an early-2005 change that CCA made

to the jail’s staffing policy. Prior to 2005, nurses at the

jail worked in one of three permanently assigned shifts.

All of the plaintiffs, or all but one—the record is not

clear—, worked on the first of those shifts, the day shift.

Tension arose among the shifts. Plaintiff Forrest’s deposition put the situation in context:

Q. You said everybody was talking about the fact

that the first shift people thought second and third

shifts were slackers, right? 

A. Well, we complained about that they didn’t

get some of the work done that we know they

should have gotten done.

* * *

Q. And that was a commonly held belief by firstshift people? 

A. Yes. And I’m sure the second shift felt the same

way about—in nursing, I don’t care what it is . . . each

shift is going to complaint about the other shift . . . . It

was common in that facility for everybody to be

complaining about the next shift.

There were also allegations that nurses on the first

shift—that is, plaintiffs—were racists. To respond to the

tension among the shifts, CCA’s regional director of

health services, Mary Garner, announced in early 2005

that all nurses would be assigned to rotating shifts on

a month-to-month basis. That means that all nurses at

various times had to work on all three shifts, and the
4 No. 10-2768

policy was executed such that the same nurses would

not always work with one another. That makes sense;

imagine that A and B work together in Week 1 and respect

one another’s work ethic. During a subsequent week

when the two do not work together, A is less likely to

complain that B is a poor worker and more likely to

chalk up uncompleted tasks to a busy shift or some

other irregularity.

Although the effect of the shift-change policy was to

split up a predominately black shift, plaintiffs do not

point to evidence that the change was made for discriminatory reasons. Indeed, the policy applied to all nurses.

Rather, plaintiffs focus on how the change made them

feel. Again, plaintiff Forrest: “[T]he reason we were

upset about it is because of the fact that day-shift nurses

were mostly black, and [Garner] . . . was splitting us up. . . .

You got eight black nurses, so let’s break them up so

they don’t have the, you know, the power.”

Plaintiffs also point to a second incident of alleged

racial discrimination. In April 2006, the health services

administrator, Carmen Copely, left her position at the jail.

Following Copely’s departure, a six-page excerpt from

a book about management was found in her office. See

Kenneth Blanchard, William Oncken, Jr., and Hal

Burrows, THE ONE MINUTE MANAGER MEETS THE

MONKEY 5, 55, 68, 82, 94, 112 (1989). The book likens

monkeys to workplace problems, as in “there is a monkey

on my back.” The point of the book is to teach managers

to empower subordinates to solve problems—manage

their own monkeys—rather than effectively morph into

subordinates themselves. Id. at 29-30.
No. 10-2768 5

Nothing about the excerpt from Copely’s office could

reasonably convey a contrary impression. Here are the

contents. Page 1 consists of a man sitting at his desk

and looking rather harried. The cause is evident, for a

monkey is perched on the man’s shoulders, and several

others are making rather a nuisance of themselves; they

are fussing with papers in the man’s in-box, tipping over

his trash can, and warring over a telephone. Pages 2

through 4 of the excerpt contain management aphorisms,

one per page. Page 2 reads, “The more you get rid of your

people’s monkeys, the more time you have for your

people.” The aphorism on page 3 reads, “All monkeys

must be handled at the lowest organizational level consistent with their welfare!” Someone has underlined the printed words “lowest organizational level”

and listed employee-groups within the jail—mental

health, doctors and physician assistants, clerks, and

nurses. The fourth page’s aphorism admonishes

managers to “[p]ractice hands-off management as much

as possible and hands-on management as much as necessary.” Here, someone has underlined “hands-off” and

“hands-on.” The fifth page contains a summary of “four

rules for monkey management.” Each of the rules

explains how managers should supervise their people

in addressing workplace challenges. The sixth page is

bereft of primates or people and is geared toward promoting effective time-management. Even without the

context provided by the book, it is clear from the

excerpt that monkeys are workplace challenges,

and that people—non-metaphorically referred to as

“people”—are not being compared to monkeys. Within
6 No. 10-2768

the book’s construct, bosses have people, and everyone

has monkeys.

Plaintiffs feel the excerpt and marginalia are racist,

and they seem to maintain that the excerpt’s discovery

helped spark a hostile work environment. The latter

notion is conceptually sound, as writings may be used

in ways unintended by authors. See, e.g., Salil Tripathi,

Enraged by Madonna and Nicole, NEW STATESMAN 28

(Sept. 20, 1999) (discussing the objection of Hindus to the

use of a verse from the Bhagavadgita in Stanley Kubrick’s

Eyes Wide Shut). One can easily imagine that other employees in a workplace might hijack the anthropomorphic monkey management sketch and use it for

racist ends. See Aman v. Cort Furniture Rental Corp., 85 F.3d

1074, 1082 (3d Cir. 1996) (observing that it “has become

easier to coat various forms of discrimination with the

appearance of propriety” because the threat of liability

takes that which was once overt and makes it subtle).

Of course, the potential for expropriation does not establish that the material is racist. Cf. id. at 1083 (reasoning

that the use of “code words,” when combined with other

evidence, could support an inference of racial animus).

Plaintiffs claim that there was more in this case: they

say that the nurses were referred to as monkeys over the

jail’s intercom by two different CCA employees. Plaintiffs’ characterization, however, is unsupported by the

record evidence that they cite. The evidence indicates

that two employees used the word monkeys when they

made comments over the jail’s intercom. However, the

record does not indicate that the word was used to refer

to nurses or any subset of nurses (e.g., plaintiffs, as op-
No. 10-2768 7

Another of the nurses who did not appeal the district court’s 1

summary judgment ruling also saw the employee in question.

posed to all of the workers at that jail), nor does the record put the statements in any kind of meaningful context.

Subsequent to the incident involving the management

excerpt, one of the plaintiffs observed workers at the

jail wearing clothing emblazoned with symbols of the

confederacy. Specifically, in September 2006, plaintiff

Ellis observed a jail employee wearing a T-shirt that

contained a representation of a confederate flag on it.1

The employee was not one of Ellis’s supervisors nor did

the employee supervise any other plaintiff. Ellis reported the incident, and the record appears to be silent

as to what response, if any, was made by CCA. On a

separate occasion, too, Ellis observed a different employee wearing a shirt decorated with the confederate

flag. That employee also was not a supervisor of

Ellis or other nurses, and the response of management

is under-specified in the record (although it appears

limited disciplinary action was taken).

The final incident related to discrimination that plaintiffs highlight is an encounter that plaintiff Jones had

with a doctor at the jail. The timing of the event has not

been made clear. At some point, Jones was talking with

a doctor about an inmate at the jail whose last name

was Cole. Jones asked what the inmate’s first name

was, and the doctor replied either that the first name

was “black as coal” or that it was “black ass coal.” Jones

filed a complaint against the doctor after the incident,
8 No. 10-2768

and management gave a copy of the complaint to the

doctor. The doctor apologized to Jones but in doing so

told her that she should let the doctor know directly if

he said anything offensive. Jones, apparently unhappy

that the written complaint was turned over to the

doctor, filed another complaint alleging that she was

experiencing a hostile work environment. (The response,

if any, to the follow-up complaint is not included in

the record.)

The discrimination that plaintiffs contend they suffered

was not the cause of their departure from CCA. Rather,

they say they were constructively discharged for

being whistleblowers. Plaintiffs contend they were retaliated against after complaining about privacy violations, improper alterations of medical records, improper

handling of inmate complaints, and medication errors.

Their briefing is less than clear as to precisely what retaliatory acts CCA undertook, and the matter has not

been teed up by the parties. Plaintiff Ellis says that she

was suspended for reporting (internally) another nurse’s

medical errors. Plaintiff Jones was given a “disgusted

look” by health services administrator Copely at one

point. Those are the only specific alleged incidents of

retaliation that plaintiffs highlight (or we perceive),

although plaintiffs also contend that the 2005 shiftchange policy was an act of retaliation.

Eventually, plaintiffs decided they could no longer

work at the jail. In September 2006, plaintiff Jones

resigned her employment, stating in a written communication to the health services administrator that the
No. 10-2768 9

decision was due to “intolerable working conditions.”

Plaintiffs Ellis and Forrest resigned a few weeks later.

Plaintiff McNeil resigned the following January; her

resignation letter relied primarily on professional violations that she observed, indicating that she would put

her nursing license in jeopardy if she remained. She

also stated that she experienced “racial and discriminatory conditions.”

After they quit, plaintiffs filed suit and their operative

complaint comprised twelve counts. CCA moved for

summary judgment, pursuant to Rule 56 of the Federal

Rules of Civil Procedure. In its order granting that

motion, the district court concluded that plaintiffs failed

to create jury-triable issues on their claims of federal

employment discrimination and state-law retaliatory

discharge. (The district court granted summary judgment

on the other claims, and plaintiffs do not appeal those

rulings.) In addition, the district court ruled that plaintiff

Forrest’s lawsuit was barred by the doctrine of claim

preclusion, also known as res judicata.

II. Discussion

Under Rule 56 of the Federal Rules of Civil Procedure,

a court “shall grant summary judgment if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). A summary judgment motion is appropriately granted “against a party

who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and
10 No. 10-2768

on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To

survive summary judgment, a non-movant must be able

to show that a reasonable jury could return a verdict in

its favor—metaphysical doubt as to the material facts

does not create a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). Our review is de novo: we accord no

deference to a district court’s determination that the

requirements of Rule 56(a) have been met. Clifford v. Crop

Prod. Servs., Inc., 627 F.3d 268, 271 n.5 (7th Cir. 2010). The

same holds true for the district court’s determination (or

apparent determination) that some of plaintiff Forrest’s

case is barred on claim preclusion grounds. Remer v.

Burlington Area Sch. Dist., 205 F.3d 990, 998 (7th Cir.

2000). Nonetheless, we may affirm on any basis fairly

presented in the record. In re Airadigm Communications,

Inc., 616 F.3d 642, 652 (7th Cir. 2010).

Although the district court correctly determined that

there was no genuine issue of material fact related to

plaintiffs’ legal claims, the district court erred with

respect to its claim preclusion ruling. That error, however, was harmless, and we therefore affirm the district

court’s judgment.

A. Hostile Work Environment

We will start with plaintiffs’ hostile work environment

claims. The claims were brought under Title VII of the
No. 10-2768 11

1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42

U.S.C. § 1981. In seeking to establish the existence of a

hostile work environment, plaintiffs must show that

their work environment was both objectively and subjectively offensive—that is, “one that a reasonable person

would find hostile or abusive, and one that the victim

in fact did perceive to be so.” See Faragher v. City of Boca

Raton, 524 U.S. 775, 787 (1998). In determining whether

an environment is sufficiently hostile to support a

claim, the Supreme Court has instructed us to cast a

wide net and consider the totality of the circumstances.

The circumstances include “the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.” Faragher, 524 U.S. at 787-

88 (quotation marks omitted). To qualify as a hostile

work environment, the conduct at issue must be severe

or pervasive enough to cause psychological injury, although Title VII “comes into play before the harassing

conduct leads to a nervous breakdown.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 22 (1993). In addition to showing

that the environment was sufficiently serious, the plaintiff must show that the harassment was based on membership in a protected class, Cerros v. Steel Techs., Inc., 288

F.3d 1040, 1045 (7th Cir. 2002), and also that there is a

basis for imputing liability to the plaintiff’s employer.

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

Plaintiffs have not created a genuine dispute for

trial. They maintain that “[v]erbal and written derogatory

references to ‘monkeys,’ confederate flag garb, skin-
12 No. 10-2768

As we noted at the outset, plaintiffs unhelpfully treated 2

themselves as one person throughout much of their briefing,

just as they did before the district court. In the context of a

hostile work environment claim, secondhand harassment is

less severe than firsthand harassment. Peters v. Renaissance

Hotel Operating Co., 307 F.3d 535, 552 (7th Cir. 2002). For the

sake of our ease only, we have generally indulged plaintiffs’

fiction that the nurses were effectively a single entity, but

we underscore that the briefing gambit should be avoided

by litigants.

color comments, and disparate discipline and treatment

based on race are not the characteristics of a civil, nondiscriminatory work environment hospitable to AfricanAmericans.” We agree with the notion, but it is not supported by record evidence in this case.2

As to the materials excerpted from THE ONE MINUTE

MANAGER MEETS THE MONKEY, we will take as a given

that plaintiffs found the material subjectively hostile.

Their case founders on the objective component—that

is, what a reasonable person would find offensive or

hostile. The book is plainly directed at management

concerns, and the metaphor employed by the book (monkeys represent workplace problems) is unlikely to cause

confusion. Compare, e.g., Patrick White, The Key in “Ulysses,” 9 JAMES JOYCE Q. 10 (Fall 1971). Moreover, the management book is a spin-off of a classic article that was

first published in the Harvard Business Review in 1974.

See William Oncken, Jr., and Donald L. Wass, Management Time: Who’s Got the Monkey?, 99 HARV. BUS. REV. 178

(1999) (reprinting the article as a “classic” and noting that
No. 10-2768 13

it “has been one of the publication’s two best-selling

reprints ever”). In Gregory v. Widnall, the Ninth Circuit

concluded that a hostile work environment claim did

not raise a jury issue where supervisors had received a

“single drawing of a monkey on a memo . . . accompanied

by the verbal explanation that it was intended to

remind [supervisors] not to ‘get the monkey off their

back’ by passing their responsibilities to others.” 153

F.3d 1071, 1074-75 (9th Cir. 1998). That conclusion is

sound. The mere presence of THE ONE MINUTE

MANAGER MEETS THE MONKEY at the jail not only fails

to create a hostile work environment under our case

law, e.g., Coolidge v. Consolidated City of Indianapolis, 505

F.3d 731, 734 (7th Cir. 2007) (ruling that “brief and not

particularly severe” exposure to pornography depicting

necrophilia did not create a hostile work environment at

a crime lab), it fails to tend to establish a hostile work

environment. Similarly, the stray comments over the

jail intercom do not help plaintiffs’ case, at least not on

the record before us. It appears only that the word

monkey was used over the intercom, but plaintiffs have

provided no context. The word might have been used to

mock the jail’s administrators, to refer to all workers

collectively, or for some other purpose altogether. The

vague record evidence tells us only that the word was

uttered; no other inference is reasonable. To be sure, we

agree with the statement of one of our sister circuits that

“[t]o suggest that a human being’s physical appearance

is essentially a caricature of a jungle beast . . . is degrading

and humiliating in the extreme.” Green v. Franklin Nat’l

Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir. 2006). A
14 No. 10-2768

Plaintiffs also bring claims based on discrete acts of discrimi- 3

nation, and they rely on these incidents in support of their

hostile work environment claims. Yet, as we discuss below,

the record evidence does not support plaintiffs’ characterization, and so we omit the discrete acts of discrimination from

our discussion here.

reasonable trier of fact, however, could not conclude

that such a suggestion was made in this case.

That leaves plaintiffs with two incidents of an employee wearing clothing marked by the confederate

flag, as observed by plaintiff Ellis, and a doctor’s

offensive statement to plaintiff Jones that an inmate

named Cole’s name was “black ass coal” or “black as

coal.” The Supreme Court teaches that isolated in- 3

cidents, unless “extremely serious,” will not support a

hostile work environment claim. Faragher, 524 U.S. at

778. That makes sense, because in order to be actionable

under the pertinent statutes, isolated incidents must be

so severe that they “amount to discriminatory changes

in the terms and conditions of employment.” Id. (quotation marks omitted); see also 42 U.S.C. 2000e-2(a)(1); 42

U.S.C. § 1981(b). Although we do not appear to have

decided the matter previously, we agree that displays

of confederate flags in the workplace may support a

hostile work environment claim. See Watson v. CEVA

Logistics U.S., Inc., 619 F.3d 936, 938-39 & n.2 (8th Cir.

2010). Nonetheless, in situating plaintiffs’ allegations

among the case-law guideposts, their limited number

of claims are insufficiently severe to support a hostile

work environment claim. Compare Whittaker v. N. Ill.
No. 10-2768 15

Univ., 424 F.3d 640, 645 (7th Cir. 2005) (“An objectively

hostile work environment will not be found where most

of the conduct that forms the basis of a plaintiff’s claim

consists of derogatory statements made by supervisors

or co-workers out of her hearing, and the rest is isolated

and not particularly severe.”) (quotation marks and

alterations omitted); Dandy v. United Parcel Serv., Inc., 388

F.3d 263, 271-72 (7th Cir. 2004) (unambiguously racial

and offensive epithets did not create a genuine issue,

given that epithets were used once, long in the past); and

Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552

(7th Cir. 2002) (handful of offensive comments, most of

which were by fellow employees over a year-and-ahalf period, were not sufficient to raise a jury issue), with

Lapka v. Chertoff, 517 F.3d 974 (7th Cir. 2008) (“[A]ssaults

within the workplace create an objectively hostile work

environment for an employee even when they are isolated.”); and Loughman v. Malnati Org., Inc., 395 F.3d 404,

407-08 (7th Cir. 2005) (genuine issue for jury based on

inappropriate comments and “serious physical violations”). Even indulging plaintiffs’ imprecise briefing,

which treats all plaintiffs the same, the incidents they

cite do not entitle them to a trial.

B. Other Race-Based Claims

Plaintiffs’ other race-based claims, alleging discrete

acts of discrimination, fare no better. They proceed under

the indirect method of proof announced in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The indirect

method is a summary judgment filtering device that
16 No. 10-2768

allows a plaintiff to make out a prima facie case of discrimination. The burden then shifts to the defendant to

advance a non-discriminatory explanation for its conduct, and shifts back to the plaintiff to adduce evidence that the defendant’s explanation is a lie.

To make out a prima facie case of racial discrimination under the indirect method of proof, plaintiffs must

(among other things) identify an adverse employment

action. McGowan v. Deere & Co., 581 F.3d 575, 578 (7th

Cir. 2009) (burden-shifting analysis generally works the

same under Title VII and § 1981). To qualify as adverse

means materially adverse, “not merely an inconvenience

or a change in job responsibilities.” Griffin v. Potter, 356

F.3d 824, 829 (7th Cir. 2004); see also Davis v. Town of

Lake Park, 245 F.3d 1232, 1238-39 (11th Cir. 2001) (noting

that courts have talked about materiality in different

ways but noting that to qualify as a change to “terms,

conditions, or privileges” of employment within Title

VII’s meaning requires an impact on plaintiff’s job “in

a real and demonstrable way”). In other words, the

change needs to be significant, although exactly what

that means will vary on the facts of a given case.

Herrnreiter v. Chicago Housing Authority, 315 F.3d 742,

744 (7th Cir. 2002) (discussing three types of adverse

actions that have supported claims).

Plaintiffs point to four actions on appeal that they

say were materially adverse: (1) the 2005 shift-change

policy, (2) a three-day suspension received by plaintiff

Ellis, (3) restrictions on “lunch break associations,” and

(4) their constructive discharge. We can jettison plain-
No. 10-2768 17

tiffs’ cryptic lunch plaints with basically no discussion

because the allegations were made by, and relate

to, nurses who did not appeal from the district court’s

summary judgment ruling. The other claimed adverse

actions are properly before us, but do not support

viable claims.

The 2005 shift-change policy does not qualify as materially adverse on these facts. See Washington v. Ill. Dep’t of

Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (plaintiff could

maintain a retaliation suit based on shift changes

given that the defendant knew the plaintiff’s son had

a medical condition so that a 9-to-5 schedule “was a

materially adverse change for her, even though it would

not have been for 99% of the staff”). A change in shift

assignments will not normally be sufficient to qualify as

an adverse employment action, unless it is accompanied

by some other detriment. E.g., Grube v. Lau Indus., Inc.,

257 F.3d 723, 728 (7th Cir. 2001) (no adverse employment

action where change in shift was not accompanied by

a reduction in pay or significantly diminished job responsibilities). With respect to plaintiffs Ellis, Forrest,

and Jones, they do not point to any “objective hardship” that indicates that the change might qualify as

materially adverse. Herrnreiter, 315 F.3d at 744. And

only on appeal have plaintiffs contended that family

considerations made the shift-change materially adverse

for plaintiff Ellis. They never made that argument to

the district court, and so the issue has been waived.

Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010).

Likewise, Ellis cannot prevail on her claim of discrimination based on her three-day suspension, an incident she
18 No. 10-2768

also points to in her state-law retaliation claim. Ellis and

Forrest were both punished for investigating a third

nurse’s medication errors. The nurse in question felt

harassed, and the parties dispute whether Ellis was told

that higher-ups, not Ellis, would address the matter.

There is no question that the suspension could qualify

as an adverse employment action. However, plaintiffs

fail to show that CCA’s explanation is pretext. Under

the indirect method of proving a discrimination claim,

a plaintiff first establishes a prima facie case of discrimination (an adverse employment action is one of the

elements, and we will assume the others). After the

plaintiff makes out a prima facie case, the burden shifts

to the employer to articulate a non-discriminatory explanation for its conduct. If the employer does so, the

burden shifts back to the plaintiff to show that the explanation is pretextual. Germano v. Int’l Profit Ass’n, Inc.,

544 F.3d 798, 807 (7th Cir. 2008). Here, the district court

reviewed the record evidence and concluded that “CCA

has established that its practice was to discipline

Caucasian employees as well as African American employees for similar activities . . . . Plaintiffs are left

merely to speculate as to the reasons they were disciplined, stating that they ‘believe’ their discipline was

pretextual without ever providing a factual foundation

for that belief.” App. 30. We agree.

Finally, plaintiffs’ constructive discharge claim cannot

succeed. Establishing constructive discharge is more

difficult than establishing a hostile work environment.

Thompson v. Mem’l Hosp. of Carbondale, 625 F.3d 394, 401-02

(7th Cir. 2010). The failure of the latter thus dooms the

former. Id.
No. 10-2768 19

C. State Law Whistleblower Actions

Plaintiffs maintain that they were intimidated, retaliated against, and had their employment constructively terminated for following their professional

nursing ethical obligations by complaining about safety

practices at the jail. According to them, CCA’s conduct

violated IC 22-5-3-3 (the “Act”), a statutory whistleblower provision. CCA contends that plaintiffs’ whistleblower claims cannot move forward because plaintiffs fail to point out a violation of law, which is a prerequisite to a claim under the statute, and because plaintiffs failed to submit written complaints to an appropriate state agency or official. We evaluate the arguments on a nearly clean slate; Indiana Courts have

had limited occasion to interpret the Act. Coutee v.

Lafayette Neighborhood Housing Servs., Inc., 792 N.E.2d

907, 912 (Ind. Ct. App. 2003). While concerns over federalism lead us to tread lightly when interpreting matters

of state law, the task before us is relatively simple and

Indiana courts look to basic tools of statutory interpretation, see, e.g., Estate of Moreland v. Dieter, 576 F.3d 691,

695 (7th Cir. 2009) (“In Indiana, the lodestar of statutory interpretation is legislative intent, and the plain

language of the statute is the best evidence of that intent.”) (quotation marks and alterations omitted). Our

task is to “deduce, as closely as possible, how the Indiana

Supreme Court would rule.” Hinc v. Lime-O-Sol Co., 382

F.3d 716, 720 (7th Cir. 2004). We agree with CCA that

plaintiffs do not point to a violation of law on which to

hang their whistleblower claims. Because that resolves
20 No. 10-2768

Proscribed forms of retaliation include termination of em- 4

ployment. IC 22-5-3-3(b). We assume without deciding that

Indiana Courts would allow for a whistleblower action to be

maintained under the code based on a constructive discharge

theory. See Tony v. Elkhart County, 851 N.E.2d 1032, 1040 (Ind.

Ct. App. 2006) (discussing the requirements for a constructive

retaliatory discharge claim under the common law).

the matter, we decline to reach the parties’ arguments

regarding the Act’s writing requirement.

As ever with matters of statutory interpretation, we

start with the Act’s language. The Act protects employees from certain forms of retaliation, where their

employers are under public contract. In pertinent part, 4

the provision at issue provides: 

(a) An employee of a private employer that is under

public contract may report in writing the existence of:

(1) a violation of a federal law or regulation; 

(2) a violation of a state law or rule; 

(3) a violation of an ordinance of a political subdivision (as defined in IC 36-1-2-13); or 

(4) the misuse of public resources; 

concerning the execution of public contract first to

the private employer, unless the private employer

is the person whom the employee believes is committing the violation or misuse of public resources. In

that case, the employee may report the violation

or misuse of public resources in writing to either

the private employer or to any official or agency
No. 10-2768 21

entitled to receive a report from the state ethics commission under IC 4-2-6-4(b)(2)(G) or IC 4-2-6-4(b)(2)(H).

If a good faith effort is not made to correct the

problem within a reasonable time, the employee

may submit a written report of the incident to any

person, agency, or organization.

IC 22-5-3-3(a). The protections of the Act do not attach

unless and until the employee files a “written report of

the [complained of] incident to any person, agency, or

organization.” IC 22-5-3-3(b).

In this case, plaintiffs filed internal reports primarily

about safety practices at CCA. However, plaintiffs have

not told us what state or federal laws were violated by

the conduct they observed. The Act by its terms covers

violations of federal laws or regulations, state laws or

rules, and ordinances, as well as the misuse of public

resources. IC 22-5-3-3(a)(1)-(4). A whistleblower has to

complain about such a violation or misuse of public

resources before the Act’s protections are triggered.

Here, plaintiffs point out no violation of a state law or

rule, or anything else within the Act’s ambit. Instead,

they rely on their obligations as practical nurses, under

848 Ind. Admin. Code 2-3-2(10) (standards for practical nurses), to report to their bosses or state officials

unprofessional conduct that may jeopardize patient

safety. Ironically, by filing a report, plaintiffs ensured

that there was no violation of state law, and they have

not argued that the subject matter of their complaints

fell within the coverage of the Act. Therefore, summary

judgment on the plaintiffs’ whistleblower claims was

appropriate.
22 No. 10-2768

D. Claim Preclusion

We do agree with plaintiffs that the district court erred

with respect to its claim preclusion ruling. Although the

parties have not done much to clarify matters, some of

plaintiff Forrest’s allegations were made in an earlier

(unsuccessful) federal lawsuit. The district court

appeared to rule that all of Forrest’s second lawsuit was

barred under the doctrine of claim preclusion, also

known as res judicata. The district court, relying on dicta

from Zurich Capital Markets Inc. v. Coglianese, 383 F. Supp.

2d 1041, 1047 n.2 (N.D. Ill. 2005), reasoned that Forrest

could have amended her complaint in the earlier suit to

allege conduct that occurred between the time when she

filed suit and the time when CCA moved for summary

judgment. That conclusion did not accurately reflect

our case law.

The preclusive effect of a federal court decision is a

matter of federal common law. Taylor v. Sturgell, 553 U.S.

880, 891 (2008). The federal rule is that claim preclusion generally does not bar a subsequent lawsuit for

issues that arise after the operative complaint is filed.

See Doe v. Allied-Signal, Inc., 985 F.2d 908, 914-15 (7th Cir.

1993) (“[P]laintiffs need not amend filings to included

issues that arose after the original suit is lodged.”); Spiegel

v. Cont’l Ill. Nat’l Bank, 790 F.2d 638, 646 (7th Cir. 1986); see

also 18 Wright, Miller, & Cooper, FEDERAL PRACTICE AND

PROCEDURE § 4409, at 213 (2d ed. 2002) (“Most cases

rule that an action need include only the portions of the

claim due at the time of commencing that action, frequently observing that the opportunity to file a supple-
No. 10-2768 23

mental complaint is not an obligation.”); id. at 213-16

(noting that an unsuccessful attempt to amend a complaint requires “careful analysis to determine whether

the attempt was rejected on grounds that should

preclude a later attempt to resurrect the matters excluded from the first action”).

That does not end matters, however. Plaintiffs do not

argue that Forrest’s claims differ on the merits from the

rest of the plaintiffs’ claims. The district court’s error on

claim preclusion was harmless. See Fed. R. Civ. P. 61.

In addition, we note that, on the facts and arguments

presented, the district court did an admirable job of

addressing the many issues in the case.

III. Conclusion

For the reasons set forth above, the judgment of the

district court is AFFIRMED.

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