In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3394

GERALDINE KING,

Plaintiff-Appellant,

v.

BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 4794—Rebecca R. Pallmeyer, Judge.

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ARGUED FEBRUARY 20, 2008—DECIDED AUGUST 19, 2008

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Before EASTERBROOK, Chief Judge, and BAUER and WOOD,

Circuit Judges.

WOOD, Circuit Judge. Plaintiff Geraldine King worked

as a ticket clerk for Defendant Burlington Northern &

Santa Fe Railway Company (“Burlington”). Following a

theft incident, Burlington filed a criminal complaint

against King and fired her. The criminal proceedings,

however, terminated in King’s favor. After what she saw

as her vindication, she filed a civil suit against Burlington
2 No. 06-3394

for malicious prosecution. This time she was unsuccessful:

the district court granted summary judgment in favor

of Burlington. We find that King failed to satisfy her

burden on summary judgment with respect to at least one

element of her claim. Because she cannot establish the

date when Burlington filed its criminal complaint, she is

also unable to show that Burlington lacked probable

cause as of the time of the filing of charges. For that

reason, we affirm.

I

In March 2003, Sue Walker, the Chief Clerk for

Burlington, noticed a discrepancy in the ticket inventory

at the Aurora Station. One hundred 10-ride tickets were

missing. After a thorough search, Burlington concluded

that the tickets had been stolen, and on March 17 it

launched an investigation, for which Special Agent Dale

Lange was responsible. On March 26, Lange located a

passenger whose ticket matched one of the missing numbers; the ticket showed that it had been issued on March

24. A hole-punch on the ticket revealed that it had first

been used on a 5:25 a.m. train out of Aurora on that

same day. Lange testified that the passenger identified

King as the person who sold him the ticket. Four of the

missing tickets were eventually tracked down after

Burlington employees were told to be on the lookout for

certain serial numbers. The first punch on each one occurred at times when only King was on duty selling tickets.

Lange filed a criminal complaint in the Circuit Court of

Kane County, Illinois, accusing King of stealing the
No. 06-3394 3

missing tickets. The date of the filing is disputed: King

asserts that it was on March 24, 2003 (and thus before the

date when Lange found the first missing ticket), while

Burlington says that Lange filed the complaint after the

passenger holding the suspect ticket identified King.

The district court observed that neither side submitted a

date-stamped copy of the criminal complaint as an exhibit.

At the same time, Burlington commenced proceedings

under the collective bargaining agreement (“CBA”) it had

with King’s union, the Transportation Communications

Union Local No. 781. It held an initial hearing on April 10,

2003, to determine what role, if any, King had in the

alleged theft of the ticket that Lange had recovered on

March 26. King was present and represented by the union.

A second hearing took place on May 2, 2003, by which

time two additional missing tickets had been recovered

and linked to King. One of those tickets was stamped as

sold on January 29, 2003, and the deposit slip for the

check used in payment was written in King’s handwriting.

The other was sold on March 7, 2003, and once again

the first punch was for a very early train (the 4:47 a.m.).

King was working at the relevant times on both January 29,

2003, and March 7, 2003, but she reported no revenue

that would have corresponded with the sale of the two

tickets.

In light of the information presented at the hearings,

Burlington fired King. She exhausted the administrative

appeal process, which culminated in a review by the

System Board of Adjustment, an arbitration panel convened pursuant to the Railway Labor Act (“RLA”), 45
4 No. 06-3394

U.S.C. § 151 et seq. The Board upheld King’s discharge,

finding that Burlington was

able to establish a convincing case that [King] was

the individual who sold and benefitted from the sale

of the missing tickets. The circumstantial evidence

is strong that she was the only person who could

have done so. While a question about [King’s] role

might have been raised when one missing ticket

appeared, the presence of additional missing tickets

all connected to Ms. King make for a compelling case.

In the meantime, on November 16, 2004, Burlington’s

criminal complaint was dismissed because the complaining witness, Lange, did not present himself for the

trial (even though he was in the courtroom that morning).

The criminal case was thus terminated in King’s favor,

laying the groundwork for King’s current suit for

malicious prosecution.

Before any discovery took place, Burlington moved for

summary judgment on the basis of collateral estoppel. It

claimed that the System Board of Adjustment had already

made a finding on the question whether Burlington had

cause to believe that King stole the tickets, and that this

finding precludes King from relitigating the issue of

probable cause, a necessary element in her malicious

prosecution claim. King objected, claiming that she

needed discovery to adduce facts about the prior proceedings in order to demonstrate why the conditions necessary for collateral estoppel were not satisfied.

She also wanted to depose Lange to support the merits of

her claim for malicious prosecution. She hoped to show
No. 06-3394 5

that Burlington had acted in bad faith or with malice

(another element of malicious prosecution), because its

investigation focused solely on King.

The district court thought that the facts relevant to the

issue of collateral estoppel were not really in dispute. It

instructed King to submit Requests for Admission, and

after that, the court indicated it would decide whether

discovery was necessary. Eventually the court was

satisfied that it could rule on the motion for summary

judgment even taking as true King’s contentions. It denied

the request for discovery and granted summary judgment in favor of Burlington on grounds of issue preclusion.

King filed this appeal, claiming that the district court

abused its discretion in denying discovery and erred

in holding that her claim was precluded by the arbitration proceedings.

II

We review the district court’s decision to deny King’s

Rule 56(f) motion for abuse of discretion, Kalis v. ColgatePalmolive Co., 231 F.3d 1049, 1055-56 (7th Cir. 2000), and its

decision to grant summary judgment de novo, Sound of

Music Co. v. 3M, 477 F.3d 910, 914 (7th Cir. 2007). We may

affirm a grant of summary judgment on any ground that

finds support in the record. Wallace v. Greer, 821 F.2d

1274, 1277 (7th Cir. 1987). The district court’s jurisdiction

was based on diversity (King is a citizen of Illinois, and

Burlington is a citizen of Texas and Delaware). The

parties agree that the substantive law of Illinois applies

here.
6 No. 06-3394

Illinois requires a plaintiff suing for malicious prosecution to show:

(1) the commencement or continuance of a criminal or

civil judicial proceeding by the defendant; (2) a termination of that proceeding in favor of the plaintiff;

(3) the absence of probable cause for the proceeding;

(4) the presence of malice; and (5) damages to the

plaintiff resulting from the commencement or continuance of that proceeding.

Burghardt v. Remiyac, 565 N.E.2d 1049, 1051 (1991) (emphasis removed). The parties to this suit contest only elements (3) and (4).

In its motion for summary judgment, Burlington

argued that King cannot prevail on her claim for

malicious prosecution because the SBA’s finding—that

Burlington had made a “convincing” and “compelling”

case that King was guilty of theft—is more than sufficient

to meet the lower “probable cause” threshold that would

defeat King’s civil claim. This finding, it continued, was

entitled to preclusive effect in King’s civil lawsuit.

We begin with the question of preclusion. The district

court noted that the parties disputed which law (federal

or state) governed the preclusive effect of the Board’s

ruling, but that the choice made no difference to the

outcome here. The Supreme Court recently reviewed the

requirements for issue preclusion in Taylor v. Sturgell, 128

S.Ct. 2161 (2008), where it noted that “[i]ssue preclusion . . .

bars successive litigation of an issue of fact or law

actually litigated and resolved in a valid court determination essential to the prior judgment, even if the
No. 06-3394 7

issue recurs in the context of a different claim.” Id. at

2171 (quotation marks omitted). In University of Tennessee

v. Elliott, 478 U.S. 788 (1986), the Supreme Court held in

an analogous setting that “when a state agency ‘acting in

a judicial capacity . . . resolves disputed issues of fact

properly before it which the parties have had an adequate

opportunity to litigate,’ Utah Construction & Mining Co.,

supra, 384 U.S., at 422, federal courts must give the

agency’s factfinding the same preclusive effect to which

it would be entitled in the State’s courts.” 478 U.S. at 799.

We see no reason why the System Adjustment Board’s

findings would be entitled to any less deference than

those of a state administrative agency. For present purposes, however, it is enough to assume for the sake of

argument that the Board is the type of tribunal whose

findings may receive preclusive effect, because there is a

different problem that prevents us from relying on this

theory.

As Taylor held, issue preclusion applies only when

(among other things) the same issue is involved in the two

proceedings and the determination of that question is

“essential” to the prior judgment. Here, that requirement

is not met. The Board waffled a bit in its finding: rather

than saying out-and-out that King was a thief, it held only

that Burlington had established a convincing case for

that position. We cannot tell from the Board’s decision

whether the strength of evidence that it found “convincing” would be the same as the amount and quality of

evidence needed to establish probable cause in a criminal prosecution. Burlington was not required to limit its

own management discretion so severely that employee
8 No. 06-3394

misconduct had to qualify as criminal behavior (or even

probable cause to find such behavior) before it could fire

someone. In addition, the Board had nothing to say about

when Burlington’s probable cause fell into place and

whether it was before Lange filed the criminal charges.

Thus, even if we assume that the Board unambiguously

found that Burlington had probable cause to believe that

King had stolen the tickets, Burlington needs more

before it is entitled to prevail.

Burlington did not, however, put all of its eggs in the

“issue preclusion” basket before the district court. It also

argued that King had not presented enough evidence on

the merits to defeat summary judgment. It is here that the

absence of evidence about the date when the criminal

complaint against King was filed becomes important. King

herself admitted in her reply brief in this court that “[t]he

time of the filing of the charge is crucial to plaintiff’s proof

of lack of probable cause.” She complains that she was

never given the opportunity to investigate through discovery what information Lange had at the time of his

filing of the criminal complaint, and that her attempt to

ascertain the time of the filing through a Request for

Admission was stymied by Burlington’s response that it

did not know the precise date.

King is correct insofar as she recognizes that the date on

which the criminal complaint was filed is crucial to her

case. Without some evidence that the date preceded

Burlington’s discovery of the incriminating evidence,

King cannot establish that Burlington lacked probable

cause to file charges against her for the theft. There is no
No. 06-3394 9

doubt that it had ample evidence to support probable

cause for the criminal charges by the time it fired her.

The problem for King is that it was her burden—not

Burlington’s—to raise a material question of fact on each

element of her malicious prosecution claim. Among

other things, she had to establish by competent evidence

the date of the filing of the criminal charges. This information could have been obtained without depositions or

other discovery, as it is publicly available. And if for

some reason King could not learn through normal channels when the case was filed, she could have explained

the problem to the district court and asked for an opportunity to pursue alternate avenues. King, however, said

nothing to the district court about any inability to fix the

date of the charges. Instead, she argued that she needed

discovery to help her show what really happened during

the grievance procedure and why it lacked enough procedural safeguards to permit issue preclusion to apply.

We realize that, in addition to seeking to depose various

Burlington officials about the adequacy of the grievance

procedure, King informed the district court that she

wanted to depose Lange to prove that “[Burlington]

focused only on [King] . . . .” But this is a far cry from

letting the court know that she wanted to ask Lange

when he filed the complaint on Burlington’s behalf. It

also fails to alert the court to her interest in verifying

that Burlington had probable cause as of that time it

commenced the criminal proceeding. Indeed, King’s oral

remark about Burlington’s singular focus was in response

to the following question posed by the district court:
10 No. 06-3394

“What’s the evidence—in her mind, what shows that

they treated her with bad faith?” King replied that she

wanted to prove bad faith by showing that Burlington

ignored other possible suspects, and the court assured

her that it was “prepared to assume that they focused

only on her.”

Bad faith or malice, for purposes of the fourth element

of a malicious prosecution case in Illinois, is not the same

thing as probable cause (or its absence), for purposes of

the third element. Probable cause is an objective standard. If a police officer focuses on a suspect, for example

by conducting surveillance on her and only her, and

through that surveillance accumulates enough evidence

to give rise to probable cause to arrest her, it would not

matter whether he had done so out of ill will or the

purest motives.

Thus, the district court did not abuse its discretion in

denying King’s request for a continuance to conduct

discovery, because King failed to inform the court about

the only factual dispute on which discovery might have

made a difference to her claim, namely, the date of the

filing of charges and what evidence was known to

Burlington as of that date. Indeed, even had she let the

court know that this was what she wanted to explore,

the court might have denied her request on the theory

that the case did not need to be delayed for the sake of

publicly available information.

* * *

As the record stands, King has not submitted evidence

that would allow a trier of fact to conclude that Burlington
No. 06-3394 11

lacked probable cause to file criminal charges against King.

Therefore, we AFFIRM the judgment of the district court.

8-19-08