In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1303

EDWARD G. STAATS,

Plaintiff-Appellant,

v.

COUNTY OF SAWYER and COUNTY OF BAYFIELD,

Defendants-Appellees.

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 98-C-593-S--John C. Shabaz, Chief Judge.

Argued September 28, 1999--Decided July 17, 2000

 Before Bauer, Flaum, and Diane P. Wood, Circuit

Judges.

 Diane P. Wood, Circuit Judge. In September 1994,

Edward Staats learned that he suffers from bipolar disorder. He received treatment for it, but

when he attempted to return to his job as

personnel director for Sawyer and Bayfield

Counties, Wisconsin (the Counties), he was told

that the job had been eliminated. Believing that

this was a poor disguise for disability

discrimination, he pursued his state

administrative remedies. Ultimately, the Labor

and Industry Review Commission (LIRC) rejected

his claims, and the Circuit Court for LaCrosse

County affirmed that decision. Meanwhile, Staats

had also filed charges with the federal Equal

Employment Opportunity Commission (EEOC), which

in due course issued him a right-to-sue letter.

This case followed in federal court. The district

court dismissed Staats’s claims under Titles I

and II of the Americans with Disabilities Act

(ADA) and the Rehabilitation Act of 1973 on the

ground of claim preclusion. Because we find that

Wisconsin would permit claim splitting under the

circumstances presented here, we reverse and

remand for further proceedings.

I

 There is little more to the underlying facts
than we have already recounted. Staats began

working as the full-time personnel director for

the Counties in May 1993 under an arrangement

whereby he split his time between them. Either

county was entitled to terminate the agreement by

filing written notice before September 1 of the

year preceding termination. Everything proceeded

smoothly until September 1994, when Staats began

acting strangely. He was hospitalized the same

month for his bi-polar disorder; in October, he

was hospitalized again and remained in the

hospital until mid-November. In late November

1994, he attempted to return to work. At that

point, the Counties told him that he needed a

release from his doctor. He complied, but the

work release his doctor gave him restricted him

to "working no more than 40 hours per week,

taking no work home to complete after hours,

attending regular therapy sessions with

psychiatrists, in complian[ce] with his

medication, monthly laboratory testing of

medication blood level and abstinence from

alcohol for the next 90 days." In mid-December

1994, one of Staats’s treating physicians

completed a medical form indicating that Staats

was able to perform work as a personnel director

as of November 20, 1994.

 A return to work, however, was not in Staats’s

future. Instead, on December 19, the Counties’

attorney informed Staats that he could continue

to work until the end of the calendar year, at

which time his job position itself would be

eliminated. On March 3, 1995, Staats filed a

claim of employment discrimination with the State

of Wisconsin Equal Rights Division, alleging

violations of the Wisconsin Fair Employment Act

(WFEA), Wis. Stat. sec. 111.31 et seq. The Equal

Rights Division found probable cause to believe

that the Counties had discriminated against

Staats and certified the matter to a hearing

before an administrative law judge. After a full

hearing on the merits, the ALJ issued a decision

concluding that the Counties had violated the

WFEA and had failed to determine what sort of

accommodation Staats might need.

 The Counties appealed the decision to the LIRC.

Conducting the appeal on the record, the LIRC

reversed the ALJ’s decision. It found that

although the Counties had eliminated Staats’s

position because of his disability, the Counties

had not violated the WFEA. Staats sought review

of the LIRC decision in state court under the

Wisconsin state administrative review procedures.

See Wis. Stat. sec. 111.395. The state court

conducted a review limited to the administrative

record, as it was required to do by statute. See

Wis. Stat. sec. 227.57. It upheld the LIRC’s

decision. See id. Staats did not appeal. 
 Two weeks after Staats filed his complaint with

the Equal Rights Division, he cross-filed with

the EEOC. Sometime in May 1998, he received his

right-to-sue letter from the EEOC and shortly

thereafter filed the present action in federal

district court. His complaint alleged that the

Counties had discriminated against him because of

his disability (bi-polar disorder) by failing to

provide reasonable accommodations for him and

eliminating his position, in violation of Titles

I and II of the Americans with Disabilities Act,

42 U.S.C. sec. 1201, et seq., and the

Rehabilitation Act of 1973, as amended, 29 U.S.C.

sec. 794, et seq. The Counties filed a motion for

summary judgment on the basis that the state

court decision affirming the decision of the LIRC

barred the federal court action under the

doctrine of claim preclusion. See 28 U.S.C. sec.

1738; Northern States Power Co. v. Bugher, 525

N.W.2d 723, 728-29 (Wis. 1995). The district

court agreed and entered judgment for the

Counties; Staats now appeals.

II

 We review a district court’s grant of summary

judgment on the basis of claim preclusion de

novo. Roboserve, Inc. v. Kato Kagaku Co., Ltd.,

121 F.3d 1027, 1034 (7th Cir. 1997). As Staats

was the nonmoving party, we draw any inferences

from the facts in his favor. Broadcast Music,

Inc. v. Claire’s Boutiques, Inc., 949 F.2d 1482,

1486 (7th Cir. 1991).

 Staats suggests three reasons why the state

court judgment does not bar his claims under the

federal anti-discrimination laws: (1) Wisconsin

law would not give the state court judgment

preclusive effect; (2) the state court had

limited jurisdiction in conducting its review of

the administrative decision and therefore Staats

could not have brought his federal claims in the

earlier proceeding; and (3) the standards and

remedies provided by Wisconsin discrimination law

are narrower than those of federal law, and so an

exception to claim preclusion should apply.

 As we recently observed in Froebel v. Meyer,

No. 98-3925, 2000 WL 862519 (7th Cir. June 28,

2000), the federal court was required to give the

Wisconsin court’s judgment the same full faith

and credit that it would have received in a

Wisconsin court. Id. at *4; 28 U.S.C. sec. 1738.

The fact that this was a state court judgment

affirming an administrative decision does not

exempt it from the normal rules of preclusion.

State administrative findings that have been

subjected to state judicial review are entitled

to both claim and issue preclusive effect in
federal courts. Kremer v. Chemical Construction

Corp., 456 U.S. 461, 481-82 n.22 (1982). The

Supreme Court has also held that "it is sound

policy to apply principles of issue preclusion to

the factfinding of administrative bodies acting

in a judicial capacity." University of Tennessee

v. Elliott, 478 U.S. 788, 797 (1986). See also

East Food & Liquor, Inc. v. United States, 50

F.3d 1405, 1411-12 (7th Cir. 1995) (applying

administrative issue preclusion to state agency

findings in a food stamp case). On the other

hand, the Court has drawn the line at claim

preclusion for unreviewed state agency findings,

concluding in Elliott that "Congress did not

intend unreviewed state administrative

proceedings to have preclusive effect on Title

VII claims." 478 U.S. at 796.

 Although Staats’s claims arise under the ADA

and the Rehabilitation Act, not Title VII, we

think the logic of Kremer and Elliott applies

equally to other federal anti-discrimination

statutes. Because the Wisconsin circuit court

entered a judgment in Staats’s case, we have a

"reviewed" state administrative decision, which

is entitled to whatever degree of claim

preclusion Wisconsin would give it. In Froebel,

we reviewed the principles that govern in

Wisconsin:

 The Wisconsin Supreme Court recently summarized

its approach to deciding when a subsequent action

is barred in Sopha v. Owens-Corning Fiberglas

Corp., 601 N.W.2d 627 (Wis. 1999). There the

court indicated that three factors had to be

present in order to preclude the later action: 

(1) identity between the parties or their

privies in the prior and present suits; (2) prior

litigation resulted in a final judgment on the

merits by a court with jurisdiction; and (3)

identity of the causes of action in the two

suits.

Id. at 637.

Froebel, 2000 WL 862519 at *4. See also Northern

States Power, 525 N.W.2d at 728; Patzer v. Board

of Regents of the University of Wisconsin System,

763 F.2d 851, 855 (7th Cir. 1985). 

 The first requirement--identity of the parties--

is plainly met here, as Staats and the Counties

were the opposing parties in both cases. We

assume for the sake of argument that the third

requirement--identity of claim--is also

satisfied, under the transactional approach that

prevails in Wisconsin. See Northern States Power,

525 N.W.2d at 728-29; Parks v. City of Madison,

492 N.W.2d 365, 370 (Wis. Ct. App. 1992), citing

Juneau Square Corp. v. First Wisconsin National
Bank, 364 N.W.2d 164, 170 (Wis. Ct. App. 1985).

Staats’s WFEA, ADA, and Rehabilitation Act claims

arose out of the same basic factual situation and

the same basic conduct of the Counties: the

elimination of his position of employment. Under

the transactional approach, Wisconsin would

probably find that these claims are the same. See

Brye v. Brakebush, 32 F.3d 1179, 1184 (7th Cir.

1994); DePratt v. West Bend Mutual Ins. Co., 334

N.W.2d 883, 886 (Wis. 1994) ("[The] claim is

coterminous with the transaction, regardless of

the number of substantive theories or variant

forms of relief flowing from these theories; the

transaction is the basis of the litigative unit

or entity which may not be split."), quoting

Restatement (Second) of Judgments sec. 24 cmt. a.

 As in Froebel, the problem arises with the

second factor--whether this is the kind of final

judgment to which Wisconsin gives preclusive

effect. As we explained in Froebel, there are

really two elements to this inquiry: finality and

jurisdiction. Here, it is undisputed that the

state court’s review of the LIRC decision

concluded with a final judgment. Its finality is

unaffected by the fact that the procedures

governing this type of proceeding are somewhat

truncated and the standard of review is quite

deferential. Standing behind the court’s judgment

were adversarial administrative proceedings with

sufficient procedural safeguards for the state

court findings to satisfy due process. See

Kremer, 456 U.S. at 483-85.

 As in Froebel, however, we must also consider

the jurisdiction of the state agency and state

court, because the second factor used by the

Wisconsin Supreme Court requires consideration of

the jurisdiction of the first forum. See 2000 WL

862519 at *5. Under Wisconsin’s law of judgments,

"[t]he 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. Ct. App. 1986),

quoting DePratt, 334 N.W.2d at 885, quoted in

Parks, 492 N.W.2d at 368 (emphasis from Jantzen).

This proposition is reflected in the Second

Restatement: 

A given claim may find support in theories or

grounds arising from both state and federal law.

When the plaintiff brings an action on the claim

in a court, either state or federal, in which

there is no jurisdictional obstacle to his

advancing both theories or grounds, but he

presents only one of them, and judgment is

entered with respect to it, he may not maintain

a second action in which he tenders the other

theory or ground. If however, the court in the
first action would clearly not have had

jurisdiction to entertain the omitted theory or

ground (or, having jurisdiction, would clearly

have declined to exercise it as a matter of

discretion), then a second action in a competent

court presenting the omitted theory or ground

should be held not precluded.

Restatement (Second) of Judgments, sec. 25 cmt.

e; see also id. sec. 26(1)(c). 

 Under this reasoning, if there was a forum in

which all claims arising out of the single

transaction could have been brought, and the

plaintiff chooses a forum of limited jurisdiction

instead, then the plaintiff’s other claims are

barred by the doctrine of claim preclusion,

because the other claims could have been brought

in the forum of general jurisdiction. If, on the

other hand, no such forum exists, and the

plaintiff is forced to split her claims, a suit

in one forum does not bar the plaintiff from also

bringing suit in another. See Marrese v. American

Academy of Orthopaedic Surgeons, 470 U.S. 373,

382-83 & n.3 (1985).

 We explained Waid v. Merrill Area Public

Schools, 91 F.3d 857 (7th Cir. 1996), why claim

preclusion does not require litigants to choose

between claims: 

For example, if state law creates a right and

gives a state agency exclusive original

jurisdiction over claims relating to that right,

pursuit of a claim with the agency does not

preclude the subsequent pursuit of related claims

based on federal or state rights that could not

have been asserted before the agency. Because the

principles of claim preclusion do not require

plaintiffs to make this kind of choice, she may

therefore proceed in the forum of limited and

exclusive jurisdiction without losing the

opportunity to later litigate the claims not

within that forum’s jurisdictional competency. 

Id. at 865, citing Restatement (Second) of

Judgments sec. 26. Waid, which involved the same

administrative scheme before us now, held that

because the jurisdiction of the Equal Rights

Division is limited, its decision did not

preclude a plaintiff from bringing a separate

action in federal court to assert federal claims

arising from the same factual situation. Id. at

865-66. See also Jones v. City of Alton, 757 F.2d

878, 886-87 (7th Cir. 1985) (holding federal

claims and defenses were not precluded where

plaintiff tried to raise them in state

proceedings but they were improperly excluded). 

 We find Waid indistinguishable from the present
case. The Equal Rights Division’s jurisdiction is

limited; it can hear claims brought under WFEA

but not the federal anti-discrimination statutes.

Even though in a free-standing case the Wisconsin

state courts could have heard Staats’s federal

law claims, see Yellow Freight System, Inc. v.

Donnelly, 494 U.S. 820, 821 (1990), the Equal

Rights Division could not: it lacked jurisdiction

to do so. See Waid, 91 F.3d at 865. Thus, it was

impossible for Staats to raise his federal claims

in addition to his WFEA claims in his action

brought before the Equal Rights Division.

Conversely, the Equal Rights Division was the

exclusive forum in which Staats could bring his

WFEA claims: the WFEA does not create a private

right of action, see Bourque v. Wausau Hosp.

Ctr., 427 N.W.2d 433, 437 (Wis. Ct. App. 1988);

Bachand v. Connecticut Gen. Life Ins. Co., 305

N.W.2d 149, 152 (Wis. Ct. App. 1981), and Staats

therefore could not assert his WFEA claims in

state or federal court.

 The net result was that Staats had no way to

consolidate his WFEA, ADA, and Rehabilitation Act

claims in any single forum. He was forced to

split his claims and litigate them in separate

fora. See Parks, 492 N.W.2d at 369-70 (holding

prior federal court action did not preclude

plaintiff’s later state action where federal

court declined to retain jurisdiction over

pendent state claims after granting summary

judgment for defendant on federal claims). Cf.

Balcerzak v. City of Milwaukee, 163 F.3d 993, 997

(7th Cir. 1998) (holding plaintiff’s sec. 1983

claims were precluded where, due to his

litigation strategy, he chose not to raise

government defendant’s race discrimination as a

defense to his termination in state proceedings);

Humphrey v. Theraldson Enters., Inc., 95 F.3d

624, 627 (7th Cir. 1996) (holding plaintiff’s

federal claims precluded when he chose to file

state law claims in administrative forum of

limited jurisdiction where state law provided a

private right of action).

 The Counties speculate that Staats could have

filed two suits at once in the state courts: one,

his appeal from the LIRC, see Wis. Stat. sec.sec.

111.395, 227.52, and two, an independent suit

raising the ADA and Rehabilitation Act claims.

Once the two suits were pending in the same state

court, they continue, that court could have

consolidated them for disposition. See Wis. Stat.

sec. 805.05. That theory, however, is

inconsistent with the Wisconsin Supreme Court’s

recent decision in Hanlon v. Town of Milton, No.

99-1980-CQ, 2000 WL 793968, *3-4 (Wis. June 21,

2000) (holding property owner’s failure to join

sec. 1983 action with certiorari proceeding under

Wis. Stat. Ch. 68 did not result in sec. 1983
action being claim precluded). Hanlon tells us

that the Wisconsin courts, though they might

permit the addition of the federal claims to the

administrative review petition, will not require

a litigant to do so and will not find claim

preclusion for those who do not. 2000 WL 793968

at *4. There is no reason not to apply the same

rule to Staats’s case.

 The Counties argue Waid is distinguishable

because that case involved a state administrative

decision and not a state court judgment. That

could be significant, if we were relying on the

principle that unreviewed state administrative

findings do not have claim preclusive effect.

Here, however, the critical variable is the scope

of jurisdiction of both the initial tribunal and

the reviewing court. Froebel involved a state

administrative tribunal (the Wisconsin Department

of Natural Resources) with jurisdiction broad

enough to entertain the plaintiff’s federal

environmental claims; in that situation, we found

that the plaintiff was not entitled to raise

those claims in a separate federal suit. In

Staats’s case, in contrast, the state court’s

jurisdiction on review was as circumscribed as

that of the Equal Rights Division and the LIRC:

it could hear only the WFEA claim and was not

required to consolidate other actions with it.

See Patzer, 763 F.2d at 858 n.8; Wis. Stat. sec.

227.57 (providing judicial review of

administrative proceedings "confined to the

record"). In short, because the WFEA claims had

to be adjudicated in a forum of limited

jurisdiction, Staats is not precluded from

bringing his federal claims in another forum. 

 We note that there are other important

preliminary issues that the district court will

have to consider on remand. First, although we

have found that Staats is not barred by claim

preclusion from bringing his federal claims in

federal court, both Elliott and East Food &

Liquor suggest that his claim may be de facto

dead because of issue preclusion. Elliott, 478

U.S. at 797; East Food & Liquor, 50 F.3d at 1411.

See also Marrese, 470 U.S. at 385 ("[U]nder sec.

1738 state issue preclusion law may promote the

goals of repose and conservation of judicial

resources by preventing the relitigation of

certain issues in a subsequent federal

proceeding."); Lindas v. Cady, 515 N.W.2d 458,

465 (Wis. 1994) (holding plaintiff precluded from

relitigating issue of sex discrimination in state

court after having litigated issue in state

personnel commission proceedings); Moore v. Labor

and Indus. Review Comm’n, 499 N.W.2d 288, 292

(Wis. Ct. App. 1993) (holding federal court’s

adverse determination of whether plaintiff was an

"employee" under Title VII issue precluded his
claim that he was an "employee" under the WFEA).

At a broad level of generality, the Equal Rights

Division, the LIRC, and the reviewing court were

all considering the question whether Staats was

a victim of discrimination. On the other hand, it

is unclear whether the WFEA incorporates the

federal standards from the ADA and the

Rehabilitation Act, see Target Stores v. Labor

and Indus. Review Comm’n, 576 N.W.2d 545, 553

n.13 (Wis. Ct. App. 1998), and so it is possible

that the relevant issues are distinct enough that

Wisconsin would not find preclusion. The Counties

raised issue preclusion in their brief in support

of their motion for summary judgment, but the

district court did not rule on issue preclusion

because it based the decision on claim preclusion

instead.

 Second, assuming the issue has not been waived

(as neither party raised it apart from a comment

Staats’s counsel made at oral argument), it is

unclear if Title II of the ADA applies to public

employers, and, if so, whether administrative

exhaustion requirements apply. The circuits are

split as to whether Title II of the ADA covers

discrimination by public entities in their

employment practices. Compare, e.g., Bledsoe v.

Palm Beach County Soil and Water Conservation

Dist., 133 F.3d 816, 820 (11th Cir.), cert.

denied 525 U.S. 826 (1998) (applying Title II to

employment discrimination context), with

Zimmerman v. Oregon Dep’t of Justice, 170 F.3d

1169, 1173, reh’g en banc denied 183 F.3d 1161

(9th Cir.), petition for cert. filed 68 U.S.L.W.

3129 (August 10, 1999) (No. 99-243) (holding

Title II does not apply to employment

discrimination), as are the district courts of

this circuit, compare, e.g., Dertz v. City of

Chicago, 912 F.Supp. 319, 323-24 (N.D. Ill. 1995)

(applying Title II to employment claim brought

against public entity); Petersen v. University of

Wisconsin Board of Regents, 818 F.Supp. 1276,

1278 (W.D. Wis. 1993) (same), with Patterson v.

Illinois Dep’t of Corrections, 35 F.Supp.2d 1103,

1109-10 (C.D. Ill. 1999) (holding Title II does

not cover employment disputes between public

employers and their employees). This court has

never addressed the issue, and we decline to do

so without its being squarely presented to us.

 On a related point, we note that we also have

yet to decide whether Title II, like Title I,

requires that plaintiffs first exhaust their

state court remedies before they may seek their

federal remedies in federal court. Some lower

courts that have considered the issue have

concluded that Title II has no exhaustion

requirement. See, e.g., Petersen, 818 F.Supp. at

1280 (holding Title II does not require

exhaustion of remedies). That question too has
not been raised before us. Assuming it is neither

waived nor moot because of issue preclusion, we

leave any further proceedings on this issue for

the district court on remand.

III

 The judgment of the district court is REVERSED and

the case is REMANDED for further proceedings

consistent with this opinion.