United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 27, 2012

*

Decided March 27, 2012

Before

WILLIAM J. BAUER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11-3243

BEVERLY E. ROBINSON,

Plaintiff-Appellant,

v.

MORGAN STANLEY, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 C 5158

James F. Holderman,

Chief Judge.

O R D E R

Beverly Robinson appeals from the grant of summary judgment to her former

employer and several of its employees on her claim that she was fired in retaliation for

whistleblowing. In a prior appeal we upheld the Department of Labor’s determination that

Robinson was fired because of poor job performance and not whistleblowing activity

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

This appeal is successive to No. 10-1587 and has been submitted to the original

*

panel under Operating Procedure 6(b). After examining the briefs and the record, we have

concluded that oral argument is unnecessary. Accordingly, the appeal is submitted on the

briefs and the record. See FED. R. APP. P. 34(a)(2).
No. 11-3243 Page 2

protected by the Sarbanes-Oxley Act, see 18 U.S.C. § 1514A. Robinson v. U.S. Dep’t of Labor,

406 F. App’x 69, 74 (7th Cir. 2010). In this action Robinson repackages her claim, contending

that her firing violated Illinois law. But because Robinson’s retaliation claim is precluded

by collateral estoppel and because the other claims she raises in this appeal are either timebarred or undeveloped, we affirm the district court’s judgment.

Robinson began working in 2000 as a senior auditor for Discover Financial Services,

a wholly owned subsidiary of Morgan Stanley. Because of health problems, she went on

leave the following year under the Family and Medical Leave Act, 29 U.S.C. §§ 2601–54.

When she returned to full-time work in early 2002, her title had changed, but her pay and

benefits remained the same; Robinson nonetheless considered the change a demotion

because she lost some of her responsibilities. She testified at her deposition that an

employee in Discover’s human-resources department told her in “early spring 2003” that

she had been demoted the previous year because of her FMLA leave.

In February 2004, Robinson submitted a memo to Discover’s president and its chief

financial officer, reporting what she viewed as “financial, operational, regulatory, and legal

risks” that the company faced. Her memo included an allegation that the company was

inflating its assets by not “charging off” its customers’ bankruptcies quickly enough. Six

months later, Discover terminated Robinson, purportedly for poor job performance.

Robinson then filed an administrative complaint with the U.S. Department of Labor

alleging that she was fired not because of poor performance, but in retaliation for her

submission of the memo, an activity she asserted was protected by Sarbanes-Oxley. After a

10-day hearing at which both sides were represented by counsel, an administrative law

judge concluded that Robinson had engaged in protected activity under Sarbanes-Oxley

but that poor performance, not the protected activity, caused her termination. The

Department of Labor’s Administrative Review Board affirmed, ruling that the record

supported the ALJ’s determination that Robinson was fired for poor performance.

Robinson then petitioned for review in this court. See 18 U.S.C. § 1514A(b)(2);

49 U.S.C. § 42121(b)(4)(A). We denied her petition, concluding that the Board’s ruling was

not arbitrary or capricious given the “mountain of evidence” that demonstrated her history

of “unabated poor performance.” Robinson, 406 F. App’x at 74.

In August 2006, while the administrative complaint was pending in the Department

of Labor, Robinson filed the complaint in this case, alleging that her termination violated

Illinois law on retaliatory discharge and that the defendants retaliated against her in

unspecified ways under the Illinois Whistleblower Act, see 740 ILCS 174/20. She also

claimed that her change in job title and duties violated the FMLA and that Discover
No. 11-3243 Page 3

violated the Illinois Personnel Record Review Act, see 820 ILCS 40/4, 40/9, by introducing

certain records from her employment during the Sarbanes-Oxley hearing before the ALJ

and by keeping records of her activities outside of work.

In granting summary judgment to the defendants, the district court first ruled that

Robinson’s retaliatory-discharge claim was precluded by collateral estoppel. The ALJ’s

resolution of the factual dispute over why Robinson was fired was essential to the

judgment on the Sarbanes-Oxley complaint, the court concluded, and Robinson had the

opportunity to litigate the issue fully with assistance of counsel. See Matrix IV, Inc. v. Am.

Nat’l First Bank & Trust Co. of Chi., 649 F.3d 539, 547 (7th Cir. 2011). The court then

determined that Robinson had not produced evidence of a triable issue on the

Whistleblower Act claim. Finally, the court ruled that Robinson’s FMLA claim was timebarred and that her claim under the Personnel Record Review Act failed because she had

not exhausted her administrative remedies.

On appeal, Robinson first contends that collateral estoppel should not bar her

retaliatory-discharge claim. Though Robinson concedes that the ALJ’s ruling on her

Sarbanes-Oxley claim can have preclusive effect because he was acting in a “judicial

capacity,” see Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107–08 (1991); Hamdan

v. Gonzales, 425 F.3d 1051, 1059 (7th Cir. 2005), she nonetheless contends that collateral

estoppel is inapplicable because the ALJ’s opinion addressed her retaliation claim under

only federal, not Illinois, law.

But as the district court recognized, the application of collateral estoppel depends on

whether a factual issue in dispute has been resolved in prior litigation, not on whether the

legal theory of recovery is the same. See Montana v. United States, 440 U.S. 147, 153 (1979);

Firishchak v. Holder, 636 F.3d 305, 308 (7th Cir. 2011), cert. denied, 80 U.S.L.W. 3379 (2012).

The crux of the ALJ’s decision was that poor job performance, not Robinson’s memo to

Discover’s executives, led to her ouster; she may not relitigate that issue under the guise of

a state-law claim for retaliatory discharge.

Next Robinson asserts that the district court erred in concluding that her FMLA

claim was time-barred. A willful violation of the act is subject to a three-year limitations

period, see 29 U.S.C. § 2617(c)(2), and Robinson filed her complaint in August 2006, more

than four years after her change in job title and more than three years after a Discover

employee allegedly told her that she had been demoted because of her FMLA leave.

Robinson maintains that her claim is timely because she continued to suffer negative

consequences from her alleged demotion until the day of her termination. But a discrete act

that occurs outside of the limitations period—such as the alleged demotion here—is time-
No. 11-3243 Page 4

barred, see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–11 (2002); Groesch v. City of

Springfield, Ill., 635 F.3d 1020, 1027 (7th Cir. 2011), and the “lingering effect of an earlier,

distinct” wrong does not make a violation continuing, see Pitts v. City of Kankakee, Ill., 267

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

Robinson’s remaining arguments require little discussion. Her challenges to the

district court’s rulings on her claims under the Whistleblower Act and the Personnel

Record Review Act are undeveloped. See FED. R. APP. P. 28(a)(9). And neither of her two

remaining arguments, which address procedural rulings by the district court, has merit.

AFFIRMED.