United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued August 4, 2020 

Decided September 3, 2020 

Before 

DANIEL A. MANION, Circuit Judge 

DIANE P. WOOD, Circuit Judge 

AMY C. BARRETT, Circuit Judge

No. 19-3521 

AUSTIN WARE, 

Plaintiff-Appellant, 

 

v. 

ILLINOIS DEPARTMENT OF 

CORRECTIONS, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 19 C 3139 

John Z. Lee, 

Judge. 

O R D E R 

Austin Ware, an employee of the Illinois Department of Corrections (“IDOC”), 

appeals the district court’s dismissal of his second suit alleging discrimination, 

harassment, and retaliation by his employer and others. Because the district court 

correctly held that the doctrine of claim preclusion barred Ware’s second action, we 

affirm its judgment. 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 19-3521 Page 2 

I 

Ware is an African-American man in his 70s who, at times relevant to this suit, 

worked for IDOC as a parole commander. He also was a member of the public labor 

union, American Federation of State, County, and Municipal Employees Council 31 

(“AFSCME Council 31”), and served as an executive officer of his local union. 

Ware has filed two lawsuits, the first in 2018 and the second in 2019. The 2018 

suit (Ware I) went to judgment first. In it, Ware and Local Union 3436 brought a putative 

class action against IDOC, four Department employees, and AFSCME Council 31 and 

one of its employees. Ware alleged that beginning in January 2016, the Department 

“targeted, harassed, and punished” Ware and his coworkers “solely based on their race, 

their association with Local [Union] 3436, and their right to speak about matters of 

public concern.” He added that individual defendants were also involved in the 

discipline and retaliation directed toward Ware and the putative class members, and 

that these defendants conspired with AFSCME Council 31 to discriminate against the 

putative class. 

In January 2019, Ware and Local 3436 filed a first amended complaint. The 

defendants moved to dismiss, but the plaintiffs asked for an opportunity to file another 

amended complaint, and the district court granted their motion. On May 10, 2019, Ware 

and Local 3436 filed a second amended complaint. The defendants moved again to 

dismiss the suit, arguing that Ware’s latest amended complaint still failed to state a 

claim. After Ware and the local union did not respond to the motion and then missed a 

status hearing, on July 17, 2019, the court dismissed the case with prejudice for failure to 

prosecute and entered judgment for the defendants. Although the plaintiffs moved to 

vacate the dismissal two months later, they were unsuccessful. They did not appeal 

either from the underlying judgment or the denial of their motion to vacate. 

On May 9, 2019 (the day before he filed the second amended complaint in 

Ware I), Ware filed Ware II, the case that underlies this appeal. He again sued IDOC and 

the same four Department employees, this time adding age discrimination to his 

previous allegations of race discrimination and retaliation for “opposing and 

complaining about unlawful conduct.” He specified three main instances of 

discrimination and retaliation that began in June 2017. First, he contended that the 

defendants discriminated against him for his union association and for “speaking out 

about the disparate treatment of himself and other older and non-white [Department] 

employees.” Second, he charged that the defendants falsely accused him of, and briefly 

suspended him for, allowing unauthorized vendors to attend a staff meeting in July 
No. 19-3521 Page 3 

2017. Third, he accused the defendants of subjecting him to unwarranted discipline in 

late 2017 when they suspended him for baseless charges of case mismanagement. 

The district court granted the defendants’ motion to dismiss under Federal Rule 

of Civil Procedure 12(b)(6). It ruled that Ware I had reached a judgment on the merits, 

the allegations in Ware II arose from the same transaction as those in Ware I, and both 

lawsuits involved “the same litigants.” With the three elements of claim preclusion met, 

the court dismissed the case with prejudice. 

II 

The district court came to the right result. We review dismissals of claims 

blocked by the defense of claim preclusion (referred to in the district court’s opinion as 

res judicata) de novo. Bell v. Taylor, 827 F.3d 699, 706 (7th Cir. 2016). Although preclusion 

is an affirmative defense best addressed under Federal Rule of Civil Procedure 12(c), the 

use of Rule 12(b)(6) here “is of no consequence” because the district court had before it 

everything necessary to rule on the defense. Walczak v. Chi. Bd. of Educ., 739 F.3d 1013, 

1016 n.2 (7th Cir. 2014) (quoting Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010)). Claim 

preclusion applies to matters previously resolved as well as to issues or theories that 

could have been raised but were not. See Lucky Brand Dungarees, Inc. v. Marcel Fashions 

Group, Inc., 140 S. Ct. 1589, 1594–95 (2020); Matrix IV, Inc. v. Am. Nat. Bank & Tr. Co. of 

Chi., 649 F.3d 539, 547 (7th Cir. 2011). As we put it in one opinion, “[c]laim preclusion 

under federal law has three ingredients: a final decision in the first suit; a dispute 

arising from the same transaction (identified by its operative facts); and the same 

litigants (directly or through privity of interest).” United States ex rel. Lusby v. Rolls-Royce 

Corp., 570 F.3d 849, 851 (7th Cir. 2009) (citations and quotation marks omitted). (Ware 

acknowledges that the first element is satisfied: He correctly concedes that the district 

court’s dismissal of Ware I for want of prosecution was a final judgment on the merits.) 

Ware disputes on two grounds the applicability of the third element, identity of 

the parties. He first argues that claim preclusion cannot apply because Ware I named 

additional defendants (AFSCME Council 31 and an AFSCME employee) not sued in 

Ware II, and so he concludes that the parties in the suits are different. But the presence 

of additional defendants in the earlier lawsuit is irrelevant. The purpose of the defense 

of claim preclusion is to prevent parties from relitigating claims against those whom 

they previously sued, as Ware is attempting to do here. See, e.g., Czarniecki v. City of 

Chicago, 633 F.3d 545, 548 (7th Cir. 2011) (“The fact that the second lawsuit does not 

include [a party from the first lawsuit] as a defendant does not affect the analysis.”). 

Second, Ware argues that the parties are different because Ware I was a putative 

class action whereas he brought Ware II as “an individual action.” That is a distinction 
No. 19-3521 Page 4 

without a difference. As the named plaintiff in Ware I, Ware necessarily brought claims 

“individually” as well as “on behalf of others similarly situated.” Ware’s position as a 

putative class representative and individual plaintiff in Ware I and as the sole plaintiff in 

Ware 2 thus satisfies the party identity requirement of claim preclusion. See, e.g., 

Kilburn-Winnie v. Town of Fortville, 891 F.3d 330, 333 (7th Cir. 2018); White v. Colgan Elec. 

Co., 781 F.2d 1214, 1216 (6th Cir. 1986). 

Ware next contends that dismissal on the basis of claim preclusion was improper 

because the “causes of action” in Ware I and Ware II are distinct. Ware characterizes 

Ware I as a class suit “involving due process violations with organizational relief being 

sought,” while Ware II is “an individual action with claims based on age, race, 

retaliation, and speech in violation of the Plaintiff’s First Amendment rights.” The 

accuracy of these characterizations is questionable, but also irrelevant. To determine 

whether claims in two suits share an “identity” for purposes of federal claim preclusion, 

the key question is not the legal theory advanced, but instead whether the two suits 

arise out of “a common core of operative facts.” Bell, 827 F.3d at 706 (quoting Roboserve, 

Inc. v. Kato Kagaku Co., 121 F.3d 1027, 1034 (7th Cir. 1997)); accord Kilburn-Winnie, 

891 F.3d at 333. 

The claims in both Ware I and Ware II arise from the same set of operative facts, 

so the second element is met. In both suits, Ware alleges that IDOC improperly 

targeted, harassed, and disciplined him based on his race, his association with the local 

union, and in retaliation for speaking on matters of public concern. Furthermore, both 

operative complaints allege actions from the same period. In Ware I, the alleged

misconduct occurred after January 2016, and Ware II sets the instances of harassment no 

earlier than 2017. True, the complaint in Ware II gives more details about the 

defendants’ alleged discrimination, harassment, and retaliation. But this greater level of 

detail is subsumed by the general allegations of the defendants’ treatment of Ware 

during the same period in Ware I: the operative facts are the same. See Cole v. Bd. of Trs. 

of Univ. of Ill., 497 F.3d 770, 773 (7th Cir. 2007) (concluding that claim preclusion barred 

a second suit when “[b]oth Complaints allege[d] roughly the same series of events ... 

[and t]here [was] no indication that the [defendant’s] defrauding or harassing conduct 

described in the two suits were in any way distinct.”), abrog’d on other grounds by Lusby, 

supra. 

Finally, this case exemplifies the importance of applying claim preclusion to 

prevent duplicative litigation. All the incidents described in Ware II occurred months 

before Ware filed suit in Ware I in 2018, and therefore Ware could have included them 

in Ware I. Even if he did not think to do so, he had another chance to include those 
No. 19-3521 Page 5 

allegations during the life of Ware I. He filed his last amended complaint in Ware I and 

his new complaint in Ware II within one day of each other. Yet he split his claims on the 

same set of facts between the two suits. Splitting claims into duplicative lawsuits is the 

exact litigation tactic that claim preclusion is designed to prevent. See, e.g., Barr v. Bd. of 

Trs. of W. Ill. Univ., 796 F.3d 837, 840 (7th Cir. 2015). 

We AFFIRM the judgment of the district court.