# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted October 23, 2019 *

Decided October 24, 2019

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 18-1658

MARK THOMPSON, Plaintiff-Appellant

,

v

.

BOARD OF EDUCATION OF THE
CITY OF CHICAGO, et al., Defendants-Appellees

. Appeal from the United States District
Court for the Northern District of Illinois,

Eastern Division.

No. 14 C 6340

J ohn Z. Lee,
J udge

.

O R D E R

Mark Thompson is an African-American teacher and coach who worked for the Chicago Public Schools (“CPS”) for ten years. He has brought, and lost, seven lawsuits in state and federal courts challenging his dismissal from CPS. In this case, he raises

* We have agreed to decide the case wi thout oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-1658 Page 2

allegations that resemble those he has litig ated before. The district court dismissed Thompson’s complaint on grounds of res judi cata and absolute immunity. We affirm.

We take Thompson’s well-pleaded allegations as true. See Luevano v. Wal-Mart
Stores, Inc. , 722 F.3d 1014, 1027 (7th Cir. 2013). In 2010, Thompson first sued the Board of Education of the City of Chicago (“Board”) and Board employees over his suspension and termination from teaching positions at a CPS high school. The district court entered summary judgment for the defendants bu t allowed Thompson to proceed on one claim—that he had been suspended in retaliation for filing EEOC complaints. Thompson v. Bd. of Educ. , No. 11 C 1712, 2014 WL 1322958, at *5, 9 (N.D. Ill. Apr. 2, 2014). Thompson settled that claim in 2015.

Thompson contends that defendants then retaliated against him for that lawsuit. First, Thompson asserts, the Board solicited a former athlete of his, identified as Jane Doe, to accuse him of rape as part of a co nspiracy to have his employment terminated. Doe then told her therapist, Dr. Welke, th at Thompson had raped her when she was 17, and, according to Thompson, the Board solicited Dr. Welke to report Doe’s false rape allegation to the Illinois Department of Children and Family Services. After an investigation, the Department determined that the rape allegation was “unfounded,” but the Board nevertheless persisted in investigating Thompson based on Doe’s allegations.

Then, in Thompson’s view, the Board co ncocted a plan to have his principal evaluate his performance in May 2012 as “uns atisfactory,” as pretext to fire him in retaliation for filing his lawsuit. Thomps on was removed from the classroom the following month and suspended without pay three months later, pending a dismissal hearing by the Illinois School Board of Edu cation (“ISBE”). The Board turned over its investigatory files to Thompson in February 2013 but, according to Thompson, the files were incomplete, fabricated, and altered. In August 2013, Thompson was dismissed from his employment with CPS for budgetary reasons.

Thompson then brought three state suit s, which served as the basis for the district court’s res judicata determinations in the present case. In his first state suit, filed in late 2013 ( Thompson I ), Thompson sued the Board, several Board employees, Jane
Doe, and her mother for twelve state-law tort and statutory violations related to the Doe investigation. The state court dismissed those claims with prejudice, most for failure to
state a claim. The court also denied, on un timeliness grounds, Thompson’s motion toNo. 18-1658 Page 3

add a Title VII claim that, it believed, would unduly prejudice the defendants. Thompson v. Bd. of Educ. Tp. High Sch. Dist. 113 , No. 13 L 879 (Ill. Cir. Ct. Jan. 23, 2015).

In late 2013, Thompson filed his second state suit ( Thompson II )—a declaratory

action for Doe’s mental health records —against Doe, Dr. Welke, and Northshore University Health System (the keeper of Doe’ s mental health records). He alleged that Dr. Welke improperly reported Doe’s fals e claim of rape, and that CPS and Board employees concealed Doe’s allegations from him, and he asked the court to compel the

defendants to turn over Doe’s mental health records. The court dismissed the complaint on grounds that Doe had not introduced her mental health in the dismissal hearing, and so Thompson had no legal interest in her psychiatric records. Thompson v. Welke

, No. 2013 CH 26625 (Ill. Cir. Ct. Aug. 19, 2014).

In 2014, Thompson filed his third state-court suit ( Thompson III ), a convoluted action asserting equal-protection and abus e-of-process claims. He alleged that the defendants lacked authority to proceed with an ISBE dismissal hearing to determine his entitlement to back pay because he no lo nger was employed by the defendants. He sought to enjoin the hearing, which, he ma intained, was an inappropriate vehicle to determine back pay for a former employee. The state court dismissed the complaint for

failure to exhaust administrative remedies and for failure to state a claim. Thompson v. Bd. of Educ. , No. 14 CH 15697 (Ill. Cir. Ct. Feb. 25, 2014).

In the meantime, in mid-2014, Thompson f iled this sprawling 12-count lawsuit in

the Northern District of Illinois. This suit soon was consolidated with two other cases he had brought in federal court. The consolidated suit reprised claims arising from Doe’s rape allegation and the corresponding inve stigation, Thompson’s unsatisfactory evaluation and eventual discharge, and th e dismissal hearing. Thompson amended the complaint to include 23 counts, and the cour t stayed discovery pending the resolution of Thompson’s three state cases, all of which then were on appeal.

The Illinois Appellate Court eventually affirmed the dismissal of each of Thompson’s state cases with prejudice, see Thompson v. Bd. Of Educ. Tp. High Sch. Dist.

113 , 2016 IL App. (2d) 150226-U, ¶ 2; Thompson v. N.J. , 2016 IL App. (1st) 142918, ¶ 3; Thompson v. Bd. of Educ. , 2016 IL App. (1st) 150689-U, ¶ 2. In each case the Illinois Supreme Court denied Thompson leave to appeal. See Thompson v. Bd. of Educ. Tp. High

Sch. Dist. 113 , 60 N.E.3d 883 (Ill. 2016); Thompson v. N.J. , 60 N.E.3d 883 (Ill. 2016); Thompson v. Bd. of Educ. , 60 N.E.3d 883 (Ill. 2016).No. 18-1658 Page 4

After final decisions were rendered in Thompson I

, II , and III , the defendants here moved to dismiss Thompson’s amended compla int, arguing principally that the claims were barred by res judicata. The district court agreed, concluding that the final judgments on the merits in Thompson’s state cases precluded subsequent actions between the same parties or their privies ari sing from the same nucleus of operative facts. The court found that Thompson’s fede ral suit involved the same parties, and emerged from the same nucleus of operative fa cts, as his three state court actions. The court amended its original order, dismissing all remaining counts on res judicata grounds, except for one lingering count ag ainst the ISBE hearing officer—a count that the district court eventually dismissed on absolute immunity grounds because the officer had performed a judicial function at the hearing.

On appeal, Thompson first argues that th e district court erred by failing to construe the facts in the light most favorable to him. See Luevano , 722 F.3d at 1027. In so doing, he urges, the district court deliberat ely ignored one of his Title VII retaliation claims—that he was discharged based on th e principal’s unsatisfactory evaluation, which he regards as pretextual, fabricated in retaliation for bringing his first suit.

Thompson misapprehends the court’ s order. Contrary to Thompson’s contention, that order fairly captures the facts underlying his retaliation claim. The court noted, for instance, Thompson’s allegati on that his unsatisfactory evaluation was “pretext to terminate his employment in order to conceal the Board’s retaliatory

motive.” Thompson v. Bd. of Educ. , No. 14 C 6340, 2018 WL 1441108, at *2 (N.D. Ill. Mar. 22, 2018). And it summarized Thompson’s cl aims as arising from the following operative facts: “the purportedly improper conduct of the Defendants relating to Thompson’s suspension, the investigation into Doe’s allegations, the ISBE proceedings,

and his eventual dismissal.” Id. at *6.

Thompson then argues that the district court erred in dismissing the Title VII claim based on res judicata grounds. He co ntends that he has not had a full and fair opportunity to have that claim heard because the judge in Thompson I barred it as untimely.

Res judicata, however, bars not only claims actually decided in a prior suit, but

also all other claims that could have been brought in that suit. Aaron v. Mahl , 550 F.3d 659, 664 (7th Cir. 2008). The operative complaint in Thompson I was filed in January 2014, and by the end of 2013 Thompson knew a ll the facts underlying his retaliation claim. By that time, he had received an unsatisfactory evaluation in May 2012, wasNo. 18-1658 Page 5

dismissed in August 2013, and had discovered the unsatisfactory evaluation that was

the basis for his dismissal in Oc tober 2013. Instead of amending his Thompson I complaint, he waited to request leave to am end his complaint until nearly the eve of the

date when the state court said it would rule on dispositive motions. The Illinois Appellate Court reasonably found that the Thompson I judge did not abuse his discretion in denying Thompson leave to add his Title VII claim “[g]iven the lack of timeliness, the delay in filing th e motion [to amend] . . . , an d that [he] did not appraise the parties and the court of what the prop osed amendment entailed.” 2016 IL App (2d)
150226-U at ¶ 79.

Next, Thompson argues that because there never has been a final decision in the December 2013 dismissal hearing, that hear ing must be ongoing and constitute a “continuing or recurrent wrong” th at is not barred by res judicata. Hayes v. City of Chicago , 670 F.3d 810, 815 (7th Cir. 2012) (quoting Rein v. David A. Noyes & Co. , 172 Ill. 2d 325, 341 (1996)). Thompson insists that the Bo ard, through this ongoing and wrongful hearing, continues to use fabr icated evidence and refuses to turn over investigatory

documents related to Doe’s false sexual assault charges and the unsatisfactory evaluation. But given Thompson’s discharge in August 2013 and his hearing on that discharge in December 2013, we agree with th e district court that any harm which Thompson imputes to the Doe investigation, the hearings, or his dismissal is the “lingering effect of an earlier vi olation,” not a continuing wrong. Pitts v. City of

Kankakee , 267 F.3d 592, 595 (7th Cir. 2001).

Finally, Thompson argues that the district court erred in concluding that ISBE Hearing Officer Nielsen was absolutely immune from his due process claim. But Nielsen was performing a judicial function at the hearing, so absolute immunity shields him “from liability for civil damages.” Killinger v. Johnson , 389 F.3d 765, 770 (7th Cir. 2004).

A final matter remains: Doe moved for sanctions under Rule 38 of the Federal Rules of Appellate Procedure, asserting th at Thompson’s arguments towards her are wholly without merit. See Harris N.A. v. Hershey , 711 F.3d 794, 801–02 (7th Cir. 2013).

Sanctions are indeed warranted because Thom pson’s claims against Doe are plainly blocked by res judicata, and he “has not o ffered a reasonable and good faith argument

to avoid affirmance.” CFE Group, LLC v. Firstmerit Bank, N.A. , 809 F.3d 346, 353 (7th Cir. 2015). Thompson already had been warned by th e district court that “the validity of his suspension relating to Doe’s accusations wa s litigated” in his very first case in 2010. And he brought functionally equivalent claims for Doe’s records in Thompson II , whichNo. 18-1658 Page 6

were dismissed with prejudice. Yet Thompson has persisted in litigating his claims against Doe, arguing with little elaboration that those claims somehow relate to his retaliation claims against the Board. We ha ve concluded that similar “conduct flaunts the principles of comity and federalism” and warrants sanctions. See id . at 354. Thus, Doe’s motion is GRANTED, and she may file, within 14 days of this order, a statement of the attorneys’ fees and other expenses re asonably incurred in defending this appeal. Thompson shall file any response no later th an 21 days after Doe files her statement.

We have considered Thompson’s remain ing arguments, and none have merit.

AFFIRMED